Defendant, charged with Obstructing Government Administration in the Second Degree, moves to dismiss for facial insufficiency. For the reasons set out below, the motion to dismiss is GRANTED.^[FN1] Sealing is stayed for 30 days.

According to the Information, April 17, 2014, defendant was a passenger in a taxi on Manhattan's Lower East Side. A police officer saw the defendant turn to stare at the police vehicle, which caused the police to stop the taxi a few blocks away. Defendant had candy in his lap, was moving his shoulders, and his identification was on the floor. The officer told the defendant that he was going to run a computer check of defendant's identification, and defendant attempted to flee. When apprehended, defendant resisted arrest.

Defendant was arraigned on April 18, 2014, on an Information charging him with Obstructing Governmental Administration in the Second Degree, in violation of Penal Law § 195.05 (Count One), Resisting Arrest, in violation of Penal Law § 205.30 (Count Two), and Harassment in the Second Degree, in violation of Penal Law § 240.26(1) (Count Three) . The Court set bail and a motion schedule and adjourned the case to May 6.

Defendant filed the instant motion to dismiss on May 2, 2014. On May 15, the People filed [*2]a written response; they also orally moved to dismiss Counts Two and Three. The Court granted that motion, dismissed Counts Two and Three, and adjourned the case to July 1 for decision on the remaining count. The matter has been sub judice since May 15.

The Information alleges that, during a traffic stop, defendant, who was the passenger, fled after an officer told him that the officer was going to run a computer check of defendant's identification. The People assert that defendant's conduct obstructed a lawful "level one" De Bour inquiry, and thus that the offense of Obstructing Governmental Administration in the Second Degree is sufficiently pled. The Court disagrees. There was no lawful basis to stop the taxi in the first instance, no "objective credible reason" to run the defendant's identification, and in any event, defendant did not obstruct that action.

The Information, sworn out by Police Officer Brian Greco, alleges that, on April 17, 2014:

The prima facie case requirement does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, [*3]512 N.Y.S.2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the Information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360, 717 N.Y.S.2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S.2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S.2d at 91, 740 N.E.2d at 236. Under these standards, the Information here is facially insufficient.

As pertinent here, a person violates Penal Law § 195.05 when he "attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference." The "official function" element requires that the public servant's action be "authorized," which in turn requires that the action be lawful. For example, in People v. Graham, 54 AD3d 1056, 865 N.Y.S.2d 259 (2d Dept 2008), the court upheld a conviction under § 195.05 where defendant's disruptive behavior interfered with an otherwise lawful traffic stop. However, interference with unauthorized police conduct, such as an illegal stop or detention, does not violate § 195.05. People v. Small, 109 AD3d 842, 971 N.Y.S.2d 212 (2d Dept 2013); People v. Lupinacci, 191 AD2d 589, 595 N.Y.S.2d 76, 77 (2d Dept 1993).

Contrary to the People's contention, this case does not turn on the lawfulness of the police officer's announcement of his intention to run a computer check on defendant's identification - it turns on the lawfulness of the stop of the taxi. And on the facts pled here, the Court can discern no lawful basis for that stop.

Police action must be "justified at its inception." People v. Wheeler, 2 NY3d 370, 374, 811 N.E.2d 531, 534, 779 N.Y.S.2d 164, 167 (2004), and defendant's later conduct "cannot validate an encounter" that was not. People v. Moore, 6 NY3d 496, 498, 847 N.E.2d 1141, 1142, 814 N.Y.S.2d 567, 568 (2006). Accordingly, the lawfulness of the police conduct here must be assessed at the moment the police stopped the taxi.

"In De Bour Terms," the occupant of a stopped car "has already been subjected to a level three temporary detention." People v. Garcia, 20 NY3d 317, 325, 983 N.E.2d 259, 264, 959 N.Y.S.2d 464, 469 (2012) (Smith, J., dissenting) (citing People v. De Bour, 40 NY2d 210, 352 N.E.2d 562, 386 N.Y.S.2d 375 (1976)). Accordingly, a traffic stop must be based on, "at a minimum," reasonable suspicion. People v. Ocasio, 85 NY2d 982, 984, 652 N.E.2d 907, 908, 629 N.Y.S.2d 161, 162 (1992). Reasonable suspicion "represents that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand. " People v. Woods, 98 NY2d 627, 628, 772 N.E.2d 1107, 1108, 745 N.Y.S.2d 749, 750 (2002) (alteration, internal quotation marks and citations omitted). The facts alleged in the Information here do not give rise to reasonable suspicion.

First, there is no basis for finding that the police had reasonable suspicion to stop the taxi for a traffic violation. While the People now assert that the police saw the taxi stopped in a crosswalk, [*4]that is not a fair reading of the Information.^[FN2] Rather, the Information alleges merely that the taxi was in a crosswalk when a police officer first noticed it. It is apparent, however, that the taxi was moving when the police saw it in the crosswalk, as evidenced by the fact that the stop itself did not take place in the crosswalk; it took place at a different corner, a few blocks away.

Nor was there a lawful basis for stopping the taxi based on the officer's observation of the defendant's behavior, which consisted only of defendant's "turning his body drastically to look at [the police] vehicle and star[ing at the vehicle] intently." Such innocuous behavior is not nearly a sufficient objective indicator of criminality to give rise to reasonable suspicion. For example, in People v. Deer, 9 Misc 3d 677, 960 N.Y.S2d 891 (County Ct St Lawrence County 2013), there was no reasonable suspicion to support a traffic stop where the driver held the steering wheel with both hands and extended arms, and slowed the vehicle unexpectedly. Deer cites other examples of innocuous vehicular behavior that have been held to be insufficient to support a traffic stop, including an occupant turning his head, reaching under a seat, leaning into the front seat or looking back and forth. Id. at 683. See also People v. Campbell, 60 AD2d 363, 554 N.Y.S.2d 103 (1st Dept 1993) (looking startled and walking away from the police did not generate reasonable suspicion). The actions ascribed to the defendant - turning and staring at a police car - are as innocuous as these, and likewise did not give rise to a reasonable suspicion. See People v. Hackett, 47 AD3d 1122, 1124, 850 N.Y.S2d 676, 678 (3d Dept 2008) (no reasonable suspicion where defendant "seemed nervous and repeatedly looked at" police vehicle) .

Accordingly, since the police encounter here was not justified at its inception, there was no "authorized" subsequent police conduct for the defendant to obstruct.

Even if the police had lawfully stopped the taxi, however, the outcome of this motion would be the same, since there was no lawful basis for the police to run a computer check of the defendant's identification.

The People claim that the post-traffic stop police conduct was a lawful De Bour level one encounter. This type of encounter, "[t]he minimal intrusion of approaching to request information," is "permissible when there is some objective credible reason for that interference not necessarily indicative of criminality." De Bour, 40 NY2d at 223, 352 NE2d at 571-72, 386 N.Y.S2d at 384. And, indeed, it is true that approaching an individual and asking for identification is a level one encounter. People v. Wofford, 15 AD3d 1332, 982 N.Y.S2d 666 (4th Dept 2014).

But completely innocuous behavior will not furnish the "objective credible reason" necessary to support a level one encounter. For example, in People v. Cooper, 41 Misc 3d 1239(A), 983 N.Y.S2d 205 (Crim Ct Kings County 2013), "defendant's placing his hand outside a winter coat in the area of his waistband while standing among a group of young men in early January" did not justify a level one intrusion. Rather, the request for [*5]information must be based on some "articulable reason" for the questioning. People v. Rodriguez, 2 AD3d 1614, 1615, 919 N.Y.S2d 636, 637 (4th Dept 2011). There, for example, this standard was satisfied where police officers had received information about a nearby disturbance. Id. See also Wofford, 15 AD3d at 1332, 982 N.Y.S2d at 666 (level one satisfied where defendant was in vehicle similar to that mentioned in a tip and near the location mentioned in the tip); People v. Ingram, 114 AD3d 1290, 980 N.Y.S2d 653 (4th Dept. 2014) (level one "request for information" permissible where defendant seen near a house behind which a tip indicated that guns were stashed); People v. Abrams, 100 AD3d 1458, 953 N.Y.S2d 442 (4th Dept 2012) (defendant carrying laptop computer in area that had seen several recent burglaries involving the theft of electronics equipment).

The circumstance giving rise to a level one encounter must also be "sufficiently particular" to justify a request for "basic information." People v. Perez-Lopez, 29 Misc 3d 1218(A) at *3, 918 N.Y.S.2d 399 (Sup Ct Bronx County 2010). Thus, when the police seek information from the driver of a vehicle there must be "traffic related" reasons for doing so. Id. An officer must likewise have a particularized and articulable basis for requesting information from a vehicle's passenger. Id.; People v. Ocasio, 85 NY2d 982, 652 N.E.2d 907, 629 N.Y.S2d 161 (1995). Absent additional facts specifically attributable to the passenger, that person is free to walk, even run, from a vehicle once it is stopped by the police for an alleged traffic violation. People v. Sierra, 83 NY2d 928, 930, 638 NE2d 955, 956, 615 N.Y.S2d 310, 311 (1994) (arresting officer lacked reasonable suspicion to pursue defendant- passenger observed grabbing his waistband fleeing from livery cab stopped for a defective brake light); People v. Perez, 149 AD2d 344, 345, 539 N.Y.S.2d 750, 751 (1st Dept 1989) (the "mere fact that defendant exited [a stopped] vehicle carrying an opaque container and walked away from the scene [did] not constitute a basis for further inquiry by the police"); People v. Greene, 135 AD2d 449, 522 N.Y.S2d 860( 1st Dept 1987) (no basis for detaining defendant, a passenger who fled from lawfully stopped vehicle).

The allegations in the Information here reveal no independent, particularized basis for checking defendant's identification. Even assuming, arguendo, that the encounter began as a lawful traffic stop, defendant was the passenger, not the driver. Neither defendant's presence in the taxi nor his own behavior gave the police a lawful basis for even a level one encounter. Defendant was seated in the back of the taxi, had candy in his lap, which he was perfectly entitled to have, and was seen "fidgeting" with the candy and shrugging his shoulders. But none of these actions gave the police any "objective credible reason" to run his identification. Absent such a reason, the Court concludes that there was no lawful level one encounter here.

Finally, the Court is compelled to observe that even if the traffic stop were lawful, and even if the police could have lawfully run a computer check of defendant's identification as a level one De Bour encounter, the Information does not make out a prima facie case that defendant obstructed the identification check.

In New York, criminal statutes are "construed according to the fair import of their terms to promote justice and effect the objects of the law." Penal Law § 5.00. Thus, the Court must consider the "fair import" of the requirement in § 195.05 that, to commit the offense, a defendant must "intentionally obstruct[], impair[] or pervert[] the administration of law or other governmental [*6]function or prevent[] or attempt[] to prevent a public servant from performing an official function." This language clearly requires that the defendant's actions be calculated to somehow impede the function that a government actor seeks to perform.

Here, it is impossible to conclude that the facts alleged make out a prima facie case of obstruction. The Information alleges that defendant's identification was on the floor of the taxi, and that defendant attempted to flee when the officer told him that he was going to run a computer check. But according to the Information, when defendant fled, he left the identification behind. His attempted flight accordingly did not in any way obstruct, impair or pervert the computer check, nor did it constitute an effort to prevent or attempt to prevent that check. The officer was free to recover the identification from the floor and do with it what he sought to do. While defendant's flight might have frustrated the officer's apparently unspoken desire that the defendant wait while the computer check was effectuated, detaining the defendant pending the computer check would have been a level three encounter, and there was clearly no reasonable suspicion to support that. Accor-dingly, even if the police encounter here were lawful from its inception, and at every point thereafter, the Information would still be facially insufficient. Simply put, the facts alleged do not indicate that the defendant's behavior obstructed anything.

Finally, the Court notes that it does not appear that fleeing from a level one De Bour encounter, without more, could ever amount of a violation of § 195.05. The Court of Appeals has long held that the subject of a level one encounter has the right to run away. People v. Howard, 50 NY2d 583, 586, 408 N.E.2d 908, 910, 430 N.Y.S2d 578, 581 (1980). The "constitutional right not to respond" to a police inquiry includes the right to "remain silent or walk or run away." Id. And, in the end, that is all that defendant is charged with doing here.

For all of the above reasons, the Information does not make out a prima facie case of Obstructing Governmental Administration in the Second Degree.

For the foregoing reasons, defendant's motion to dismiss is granted. Sealing is stayed for 30 days.