A Manhattan (NY County) Criminal Court Judge recently agreed with a NY criminal defense attorney and dismissed an entire criminal complaint against the defendant. The judge dismissed the charges of Reckless Endangerment, Attempted Tampering with Physical Evidence and Obstruction of Governmental Administration after the judge found the complaint facially insufficient.
In People v. Edward Beam, 2008NY046855, the information/complaint alleged that a police officer observed the defendant holding “what appeared to be a marijuana cigarette.” Shortly thereafter, the police officer approached the defendant and the defendant ran into traffic “where multiple vehicles were in motion.” Ultimately, the officer observed the defendant throw the item he held in his hand (the alleged marijuana) to the ground and the police officer was unable to recover it.
The defendant’s criminal defense attorney argued that all three counts in the accusatory instrument were facially insufficient as followed:
(1) Penal Law ､120.20 states that “a person is guilty of reckless endangerment in the second degree when they engage in conduct which creates a substantial risk of serious physical injury to another person.” In this particular case, the criminal defense attorney argued that the information/complaint was insufficient because merely “running into traffic” does not raise to the level of a “substantial risk of serious physical injury” to another person. While the court noted the inherent danger of running into traffic, “hasty jay-walking” in moving traffic does not demonstrate such a risk with out further elaboration as to the facts and circumstances of the defendant’s activities, the vehiclular traffic and actual dangers. Furthermore, as noted by the court, the risk created by a defendant’s conduct must be foreseeable (see People v. Reagan, 256 AD2d 487 [2d Dept 1998]) and the conduct must actually create a risk of serious physical injury (see In re Kysean D. S., 285 AD2d 994 [4th Dept 2001]). Therefore, the court dismissed this count.
(2) In part, Penal Law ､195.05 states that a “person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act.” In dismissing this charge for facial insufficiency, the court asserted that the information/complaint must allege an act of “intimidation; (2) physical force or interference; or (3) an independently unlawful act” (see People v. Stumpp, 129 Misc2d 703, 704 [Dist Ct, Suffolk County 1985], affd 132 Misc2d 3 [App Term, 2d Dept 1986]).
Even more importantly, the court correctly noted that “[n]o existing statute or legal concept requires a citizen, by premonition or prognostication, to divine an officer’s future intent to effectuate an arrest by reading the officer’s mind. Absent some express and lawful order, directive or command by a police officer to engage in, or refrain from, some particular action, the defendant’s disposal of an unidentified object – which the police only ‘assumed’ was contraband – is not inculpatory, and certainly not a basis for a legally sufficient charge of obstructing governmental administration.” Moreover, “in the absence of a lawful order, [the defendant’s] departure cannot be said to be criminal. The court cannot require citizens to predict, assume or infer the directives of police authorities by surmise, thought transference or other faulty or fanciful manner.”
(3) Penal Law ､215.40 states that a person is guilty of tampering with physical evidence when, “believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person. In finding that the facts alleged in the information/complaint did not support his offense, the court noted that there is no support in iny means indicating that the item that the defendant discarded was in fact marijuana. Was there a smell? Specifically, what did the officer observer? Without more, “the court cannot engage in speculation and conjecture as to the nature of the item discarded by the defendant. Thus, if the item discarded was not something which it is illegal to possess, there would be no basis upon which to infer that the defendant intended to prevent the production of the item in any prospective proceeding.”
Additionally, the mere “act of dropping a physical object before, or while, fleeing the police does not fit within the several specifically enumerated ways that one might suppress physical evidence as proscribed by the statute. However, this court finds that discarding items before or while fleeing is not what is contemplated by the statute and declines to expand the statute’s reach to that end.”
In dismissing this case the judge correctly analyzed and reviewed the specific information/complaint and statutes. However, a dismissal for facial insufficiency is often far from a clear result in the majority of criminal matters. Therefore, in order for you to set forth the most compelling legal arguments for your defense, consult the attorneys at Saland Law PC, who have the skill and experience to formulate and present a concise and powerful argument on your behalf.