The matter initially having come before this Court by the defense omnibus motion, inter alia, to inspect the Grand Jury minutes and dismiss counts of the indictment on the basis that one or more of the charged counts were not properly proven by the People to the Grand Jury. In dismissing the count of obstructing governmental administration in the second degree, this Court concluded that the evidence was legally insufficient to establish that a public official was engaged in any “specific action” at the time of the physical interference of the official function, and as such there was no specific official function properly proven. This motion followed. After review of the papers of the District Attorney, the Court grants the motion to reargue as the Court failed to consider the particular cases cited by the People. Upon review of the case law cited, this Court holds that the motion was decided correctly as the case law does not change the outcome of the original decision and therefore adheres to its original decision.FACTSA. The Grand Jury PresentationThe evidence presented to the Grand Jury was that the defendant was seen, observed and video recorded throwing a cup of what was urine on the person and clothing of a Rikers Island Correctional Officer. The indictment charged Aggravated Harassment of an Employee by an Inmate (PL 240.32) and Obstructing Governmental Administration in the Second Degree (PL 195.05).The Grand Jury transcript recites that the officer was “an officer for meal relief” (Grand Jury transcript, p. CMW 5, lines 5-6). The event occurred at 7:28 p.m., after the kitchen was closed for inmate meals. The defendant approached and asked for a meal and the complainant told him that the kitchen was closed and that it closes at 7 p.m. (Id. p. 6, lines 6-11). The People allege that the acts were committed “while the officer was performing her duties as a Correction Officer causing her to leave her post to seek medical attention where the officer was unable to return to her post” (People’s Affirmation, para. 4).The officer testified that her responsibilities as a meal relief officer included custody and control of inmates at the subject facility (Grand Jury transcript, p. CMW 5, lines 1-14).This was the evidence regarding the officer’s official function. The officer was there in order that another officer could go for his or her meal. This is not a specific function. It is as if an officer is on patrol and breaks for a meal. The work of officer one is then taken up by officer two, who is “the meal relief officer”. But in either case both are merely on duty, the generalized duty being that of a corrections officer. The generalized duties of law enforcement, be it patrol or prisoner control, does not rise to the level of a specific function to be an element sufficiently proven under the law. Providing an officer with the title meal relief officer does not cure the defect in proof.B. The Court’s DecisionOn August 28, 2018, this Court after a review of the Grand Jury minutes, and the papers of both the defendant and the District Attorney, issued an Order granting the Defendant’s motion in part and dismissing the count of obstructing governmental administration in the second degree on the grounds that the evidence presented failed to establish the elements of the offense (See Order of August 28, 2018).The Court’s decision relied on the fact that the element of “official function” was not proven. To adopt the People’s presentation would mean that any act of an inmate that is an assault on an officer is per se obstructing governmental administration which is not the law. As a consequence of these particulars and the rest of the testimony the Court concluded that the element of official function was not proven and the count must be dismissed.C. The Motion to ReargueThe People by this motion and in a timely fashion under the relevant statute CPLR 2221(d)(2) move to reargue. In a motion to reargue, the party losing a motion moves for the court to reconsider the motion on the ground that the court failed to consider arguments that the party made in the original motion.THE COURT GRANTS THE MOTION TO REARGUEThe Court initially determined the motion on a review of the statute, the history of the statute, and materials found in the Practice Commentary pertaining to the statute. The District Attorney has since directed the Court’s attention to specific cases, which the Court had not examined but instead relied on the discussion in the Practice Commentary and its own understanding of the rules of statutory construction of penal statutes in reaching its original decision.The Court now having re-read the Grand Jury minutes, reconsidered the facts of the case and reviewed the cases cite in the motion, grants the motion to re- argue and adheres to its initial ruling.THE COURT ADHERES TO ITS RULINGThis Court holds that as a matter of law in order to sustain a count of obstructing governmental administration in the second degree the People must prove to the Grand Jury that the public servant was engaged in a specific action at the time of the physical interference. Merely being on duty is not sufficient. People v. Joseph, 156 Misc 2d 192, 194 (Crim Ct, Kings County 1992). “The mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function.” Id. at 193. Thus, “[w]ithout the inclusion of evidentiary facts specifying an official activity, an information is legally insufficient.” Id. at 196; People v. Vargas, 179 Misc 2d 236, 238 (Crim Ct, NY County 1998).The evidence before the Grand Jury was that the Corrections Officer was staffing a post and was on duty. This is similar to the police officer walking a beat, in uniform and performing official police duties. The Grand Jury did not receive as evidence the official function allegedly impeded. The fact that the officer had to leave her post is not impeding an official function. While it is disruptive of the smooth operation of the prison and requires an unplanned deployment of another corrections officer those facts do not satisfy the legally required element of the crime that the officer be engaged in a specific function other than routine corrections officer’s work of controlling and managing the inmates of a facility. This is similar to the police officer on patrol who is kicked in the shin. People v. Joseph, supra.While case law also states that the barest factual allegation of a police function would satisfy this element of the statute, see People v. Joseph, supra, the governmental action of the officer must be something other than walking patrol or prisoner control. More than just on duty is the standard. People v. Joseph, supra.Were this Court to credit the People’s interpretation of this penal law provision it would require a finding that the routine duties of a corrections officer are always obstructed because all that the officer does, prisoner custody and control, is official duty. The Joseph court stated that the issue is that this statute not become a “broad catchall” without any outer boundaries to its application. People v. Simon, 145 Misc 2d 518, 522 (Crim Ct, NY County 1989).A particularly narrow application of the plain and unambiguous language of the statute would heed the admonition that the statute not be transformed into a “catchall” for any physical contact with a public servant. This warning, in conjunction with the words of the statute, supports the contention that a public servant must be engaged in a specific action at the time of the physical interference, and not just on duty, in order to invoke Penal Law195.05. The statute uses the element of official duty to narrow its scope and prevent it from being a catchall statute for any physical contact between a defendant and a public servant. The essence of the statute is that there be physical interference with the execution of an official activity, rather than it be based upon the nature of the physical act or its possible manifest consequences, i.e., physical injury. An assault on a public servant will not concomitantly support a charge of obstructing a governmental function if the public servant was not engaged in the performance of an official function at the time of the assault. The words of the statute clearly indicate that an essential element of this crime is the prevention or attempted prevention of a specific official function by a public servant.People v. Offen, 96 Misc 2d 147 (Crim Ct, NY County 1978) is not to the contrary. In Offen the Court stated the statute was intended to make criminal conduct designed to interrupt or shut down administrative governmental operations.The People’s contention in this case would lead to the conclusion that any physical contact with any public servant while on duty would constitute a criminal offense. Such an interpretation of this statute goes beyond the reasonable purview of this law. If such an interpretation were adopted, it would be contrary to the language of the statute and incompatible with past applications of the statute. Further, enlarging the scope of the statute would ignore the admonition that this statute not become a “catchall” with “no outer boundaries”.Moreover, the necessity that the officer be performing a specific official function at the time of the physical interference would not result in the diminution of statutory protections for police officers. Officers are protected against physical attacks by the assault sections of the penal law.Acceptance of the People’s position would result in the creation of a crime not envisioned by the Legislature when it voted to enact Penal Law 195.05. People v. Joseph, supra.In summary, the language of the statute and the statute’s history, application and interpretation lead to the conclusion that an element of this crime is the prevention of a specific official function. Without the inclusion of evidentiary facts specifying an official activity, the count is legally insufficient.Accordingly, the motion to reargue is granted and the Court adheres to its prior decision dismissing the count charging obstructing governmental administration in the second degree.This constitutes the order of the Court.Dated: October 11, 2018
