Summary of the Court’s Decision:1. The defendant’s motion to dismiss count one, PL 120.20, is DENIED;2. The defendant’s motion to dismiss count two, PL 195.05, is GRANTED;3. The defendant’s motion to dismiss count three, PL 221.05, is DENIED; and4. Reservation of rights is denied subject to CPL 255.20(3);DECISION AND ORDER The defendant is charges with reckless endangerment in the second degree (PL 120.20); obstructing governmental administration in the second degree (PL 195.05); and unlawful possession of marijuana (PL 221.05).By motion filed July 2, 2018, the defendant seeks an order (1) dismissing the accusatory instrument as facially insufficient; and (2) reserving defendant’s rights to make additional motions. The People did not file a response.1The Court, having reviewed defendant’s moving papers, the People’s response, and all Court documents contained within the Court file, concludes as follows:MOTION TO DISMISS FOR FACIAL INSUFFICIENCYA valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (People v. Case, 42 NY2d 98, 99 [1977]). A facially sufficient misdemeanor information must substantially conform to the requirements prescribed in CPL 100.15 (CPL 100.40[1][a]). Additionally, the factual part of a misdemeanor information “must allege facts of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the crime charged.” (People v. Dumas, 68 NY2d 729, 731[1986]; CPL 100.40[1][b].) The information must also set forth “non-hearsay, factual allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof” (CPL 100.40[1][c]; People v. Inserra, 4 NY3d 30 [2004]). Where the factual allegations contained in an information “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, they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 361-62 [2000].) A court reviewing for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them. CPL 100.40 and 100.15; People v. Jackson, 18 NY3d 738, 747 (2012); See also Casey, 95 NY2d at 360.The instant accusatory instrument alleges, in pertinent part, that:[Police Officer Nolan Lauterborn] states that on [November 29, 2017, between 8:50PM and 8:54 PM, in the back of 41-13 12 Street in Queens County] he observed the defendant, Anthony Hayes, operating a motorcycle.Deponent further states that he observed the defendant swerving across the double yellow lines in the roadway while he was operating the…motorcycle.Deponent further states that…he activated the lights on his unmarked patrol vehicle and began to pursue the defendant who proceeded to operate the motorcycle at a high rate of speed as he made a left turn going southbound on 10 street without stopping at a stop sign.Deponent further states that he observed the defendant as he operated the…motorcycle at a high rate of speed around a car that was driving in front of him on 10 Street which is a one-way street.Deponent further states that he observed the defendant as he then turned left onto 12 Street and operated the…motorcycle onto the sidewalk where he was apprehended.Deponent further states that he recovered one (1) marijuana cigarette from the defendant’s person upon arrest.Deponent further states that his conclusion that the substance recovered is marijuana is based upon his experience as a police officer and in his training in the identification and packaging of controlled substances and marijuana.Reckless Endangerment in the Second Degree (PL 120.20)A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. Thus, to establish a prima facie case of reckless endangerment in the second degree (PL §120.20) the accusatory instrument must satisfactorily allege two elements: (1) that the defendant recklessly engaged in conduct which (2) created a substantial risk of serious physical injury to another person.A person acts recklessly when “he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (PL 15.05[3]). As such, the risk created by the defendant’s conduct must be foreseeable (People v. Reagan, 256 AD2d 487 [2d Dept 1998]). Further, serious physical injury is defined as “impairment of a person’s physical condition which creates a substantial risk of death…or serious and protracted disfigurement, or protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (PL 10.00[10]). Finally, the reckless endangerment in the second degree statute requires “an objective assessment of the degree of risk presented by [defendant's] reckless conduct” and the conduct “must actually create a substantial risk of serious injury” (In re Kysean D.S., 285 AD2d 994, 994 [4th Dept 2001]).The allegations in this case are similar to those upheld in People v. Wolz, 300 AD2d 606 [2d Dept 2002]. In Wolz, the defendant was “driving at an excessive rate of speed, weaving in and around other vehicles, and drove onto the shoulder of the road before losing control of his cause and crossing the median into the opposing lane of traffic where his vehicle spun around and stopped, causing the death of one motorcyclist and serious injuries to another.” The defendant in this case, similarly, drove at a high rate of speed; disobeyed numerous traffic control devices, including crossing double yellow lines and failing to stop at a stop sign; sped around multiple vehicles; and eventually drove onto a sidewalk where he was apprehended. Therefore, in the light most favorable to the People, the accusatory instrument establishes reasonable cause to believe that the defendant’s alleged conduct was reckless and, by engaging in such conduct, he created a substantial risk of serious injury to another person. Moreover, it is insignificant that in Wolz the defendant’s actions caused actual serious physical injuries and, even, a death; reckless endangerment in the second degree requires only a substantial risk of serious physical injuries.Accordingly, the defendant’s motion to dismiss this charge is DENIED.Obstruction of Governmental Administration in the Second Degree (PL 195.05)A person is guilty of obstruction of governmental administration in the second degree “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…” (PL 195.05).An essential element of the crime of obstructing governmental administration, to be charged in an information, must be an act of either (1) intimidation or (2) physical force or interference or (3) an independently unlawful act. Additionally, the statute penalizes intentional conduct to prevent the public servant from engaging in a specific function (In re Armell N, 28 Misc 3d 528, 531 [Crim Ct, Kings County 2010]).Here, the allegations fail to establish the defendant’s intent to prevent the officer from engaging in a specific function. Significantly, there are no allegations to support the inference that defendant knew that the police officer was preforming a specific function. The accusatory instrument merely alleges that the officer “activated the lights on his unmarked patrol vehicle and began to pursue the defendant” (accusatory instrument at 2). However, the accusatory instrument does not allege that during the chase, the officer communicated to the defendant to pull over. Additionally, since the officer was traveling in an unmarked vehicle, there are no allegations from which the Court may be infer that the defendant knew that the vehicle chasing him was a police vehicle.Therefore, the allegations fail to establish reasonable cause to believe that the defendant’s conscious objective was to impede or frustrate the police officer from performing an official function (PL 15.05[1]); see People v. Case, 42 NY2d 98 [1977]).Accordingly, the defendant’s motion to dismiss count one, obstructing governmental administration in the second degree (PL 195.05), is GRANTED.Unlawful Possession of MarijuanaA person is guilty of unlawful possession of marijuana “when he knowingly and unlawfully possesses marijuana” (PL 221.05).The Court rejects the defendant’s argument that the accusatory instrument fails to satisfy the pleading requirements for identifying marijuana under People v. Kalin (12 NY3d 225 [2009]). According to Police Officer Nolan Lauterborn, he recovered a marijuana cigarette from the defendant’s person. The officer’s conclusion that the substance was marijuana was based on his “experience as a police officer and in his training in the identification and packaging of controlled substances and marijuana.” The Court finds these allegations to be sufficient under People v. Kalin (12 NY3d at 231-232 [2009] [it was not necessary that { "pageset": "S59the officer describe what the substances looked like or attach a laboratory report indicating that the substances had been tested and found to be heroin and marijuana]). Additionally, the allegations are “specific enough to allow defendant to invoke the protection of double jeopardy in the event that he was acquitted of these charges but later subject to further prosecution” (id. at 231).Accordingly, the defendant’s motion to dismiss this charge is DENIED.The branch of the motion reserving the right to make further motions is denied subject to the extent permitted by CPL 255.20.This constitutes the Decision and Order of the Court.Dated: September 25, 2017
