Defendant in this case was charged with the crimes of Obstructing Governmental Administration in the Second Degree [OGA] and Resisting Arrest. The charges arose when a police officer saw defendant fleeing the scene of an apparent crime in progress. Although the police officer ordered him to stop, defendant continued to flee. When he found defendant a short time later, the officer told him that he was under arrest for OGA. Defendant again ran away, but was soon apprehended. Defendant was then charged with OGA and Resisting Arrest.

Defendant has moved to dismiss the two criminal charges on the ground that the accusatory instruments fail to allege facts that would sustain the elements of either offense. Whether the People can proceed against defendant on either charge depends on whether defendant's failure to stop when ordered to do so by a police officer amounts to the crime of Obstructing Governmental Administration in the Second Degree. If not, then both charges against defendant must be dismissed.

According to his October 30, 2014 Supplemental Supporting Deposition, Rochester Police Officer Michael Collins was on Avenue D in Rochester, New York at about 9:15 p.m. on October 22, 2014 when he heard glass breaking from behind the [*2]building at 945 Avenue D. As he went to the rear of the building to investigate, Officer Collins observed a broken window. Simultaneously, he saw defendant Dwight Brown running through the backyard of 945 Avenue D, jumping over the barbed wire fence that surrounded the yard, and running into a parking lot of a nearby closed business.

Believing that defendant might have been in the process of committing a burglary, Officer Collins ordered defendant to stop running several times. Defendant, however, ignored Officer Collins' orders and kept running with Officer Collins in pursuit.

A short time later, Officer Collins saw defendant in front of 909 Avenue D, approached him, and told him he was under arrest. Defendant again ran away, and Officer Collins again pursued defendant. Within minutes, Officer Collins caught up to defendant in front of 989 Avenue D, and used physical force to take him into custody.

Under NY Criminal Procedure Law §100.40(1)(c), an accusatory instrument charging a defendant with a misdemeanor must contain factual allegations that, if true, support every element of the crimes charged. See People v. Casey, 95 NY2d 354, 360 (2000); People v. Alejandro, 70 NY2d 133, 136 (1987). See also NY Criminal Procedure Law §100.15(3).

The People have charged defendant with Obstructing Governmental Administration in the Second Degree because he fled from the police and did not stop when Officer Collins ordered him to do so after seeing him at the scene of an apparent burglary in progress. Under NY Penal Law §195.05, to be guilty of OGA, a person must:

Defendant does not dispute that his presence at, and then flight from, the scene of the apparent burglary gave Officer Collins sufficient reason to suspect that defendant was involved in a crime. Plainly, under those circumstances, the police were authorized to stop and detain defendant for further questioning. See People v. Hollmon, 79 NY2d 181, 184-85 (1992); People v. DeBour, 40 NY2d 210, 223 (1976). Defendant also does not dispute that by fleeing the scene after the police ordered him to stop, he frustrated the police officers' ability to investigate the possible burglary as required by his job duties.

Defendant maintains, however, that even if his actions justified his detention by the police for further investigation, his flight from Officer Collins does not constitute the crime of Obstructing Governmental Administration in the Second Degree. The People, on the other hand, contend that defendant's failure to comply with the officer's order to stop running and his flight from the scene interfered with the officer's ability to conduct an investigation of the burglary, and therefore amounted to OGA.

The New York Court of Appeals has circumscribed the circumstances under which a defendant's conduct can be considered the type of interference that [*3]encompasses OGA. As the Court has recently reaffirmed, interference under the OGA statute must be " in part at least, physical in nature' (People v. Case, 42, NY2d 98, 102 (1977), but criminal responsibility should attach to minimal interference set in motion to frustrate police activity' (Matter of Davan L., 91 NY2d 88, 91 (1971))." People v. Dumay, 23 NY3d 518, 524 (2014). Thus, in Matter of Davan L., where defendant rode in circles on his bicycle in the vicinity of an undercover police drug purchase operation yelling that the police were present, defendant's words and actions together comprised the crime of Obstructing Governmental Administration in the Second Degree.

In Matter of Davan L., the critical physical component of defendant's interference that warranted his OGA adjudication was not merely his words. Rather, it was his intentional physical intrusion into a defined area of police activity accompanied by conduct designed to frustrate legitimate police activity. See, e.g., People v. Covington, 18 AD3d 65, 71 (1st Dep't); lv. denied 5 NY3d (2005) (OGA conviction proper where defendant yelled "police are coming" as the police attempted to execute a search warrant); People v. Marte, 30 Misc 3d 1205(A), *2 - *3 (NY City Criminal Ct. 2010) (OGA information alleging that after defendant observed undercover police at an apartment building, he telephoned to accomplices that the police were present and directed them to shut down and move away from the building was sufficient); People v. Yarborough, 19 Misc 3d 520, 524-25 (Sup. Ct., Bronx Cty. 2008) (OGA information alleging that defendant stood between police and suspects and yelling at suspects as police attempted to question them was sufficient).

In contrast, defendant in this action did not affirmatively interject himself into police activity. To the contrary, defendant ran away from the scene of the apparent burglary in process to avoid being anywhere near police activity. Fleeing the area of police activity in response to Officer Collins' direction to stop was the only physical component of defendant's conduct.

It is well established that a person has no obligation to cooperate with police efforts to investigate suspected criminal activity. Indeed, the New York Court of Appeals has repeatedly affirmed the principle that absent reasonable suspicion that a person has committed a crime, a person possesses the "right to be let alone." People v. Moore, 6 NY3d 496, 500-01 (2006). For that reason, the police have no authority to pursue a person who flees from the police unless there is reasonable suspicion that the person has committed a crime. See People v. Holmes, 81 NY2d 1056, 1058 (1993); People v. Major, 115 AD3d 1, 5 (1st Dep't 2014); People v. Cady, 103 AD3d 1155, 1156 (4th Dep't 2013).

Because a person has no obligation to cooperate with the police, it stands to reason that a person's failure to cooperate with a police investigation, including a person's flight from the police, flight from the police, does not, as a general rule, constitute a crime.^[FN2] Accordingly, for example, in People v. Perez, 47 AD3d 1192, 1193-94 (4th Dep't 2008), defendant's conviction for OGA was reversed because his refusal [*4]to cooperate with police who knocked on his door in response to a neighbor's complaint about excessive noise was simply defendant's "exercise of his right to be let alone' and to refuse to respond to police inquiry.'" People v. Perez, 47 AD3d at 1193, citing People v. May, 81 NY2d 725, 728 (1992). See People v. Offen, 96 Misc 2d 147, 150 (NY City Criminal Ct. 1978), cited favorably in Matter of Davan L., 91 NY2d at 91 (no OGA where, to avoid being given a summons, defendant refused to identify himself, walked away from the police, went into his store, and locked the door).

Other courts have held similarly. In People v. Young, 44 Misc 3d 1204(A) (NY City Criminal Ct. 2014), the fact that the car's passenger fled after a traffic stop after the police officer told him he was going to run a computer check of his identity did not comprise OGA. In People v. Ferreira, 10 Misc 3d 441 (NY City Criminal Ct. 2005), the fact that defendant attempted to leave the location of a shooting investigation after the police told him to stay in the area did not comprise OGA. In People v. Bryan, 190 Misc 2d 818 (Poughkeepsie City Ct. 2002), the fact that defendant fled the scene after the police officer told him he was being charged with possession of an alcoholic beverage in public did not comprise OGA.^[FN3] In People v. Tillman, 184 Misc 2d 20 (Auburn City Ct. 2000), the fact that defendant, who was a suspect in a narcotics investigation, ran away from the police who had stopped him on the street for questioning did not comprise OGA.

The Tillman Court noted that under the law, a person's flight from a police officer may create rights and duties for police, such as the right to pursue and detain a person under appropriate circumstances. Nonetheless, as the Tillman Court observed, the creation of such rights and duties does not concomitantly transform a person's flight from the police into conduct that constitutes the crime of Obstructing Governmental Administration in the Second Degree. See People v. Tillman, 184 Misc 2d at 22.

In this case, defendant's flight from the scene of the apparent burglary was the sole reason that Officer Collins attempted to arrest defendant for OGA. Because defendant's flight did not amount to OGA or any other crime, there was no probable cause for his arrest. Under those circumstances, defendant's failure to cooperate with his arrest for OGA was likewise invalid. See People v. Peacock, 68 NY2d 675, 677 (1986); People v. Perez, 47 AD3d 1192, 1193 (4th Dep't 2008).

For the reasons discussed above, defendant's motion to dismiss the charges of Obstructing Governmental Administration in the Second Degree and Resisting Arrest is granted in its entirety.

SO ORDERED.