DECISION AND ORDER Defendant Jobarteh Ebrima is charged with Resisting Arrest (PL §205.30) and Obstructing Governmental Administration in the Second Degree (PL §195.05). Defense filed the instant omnibus motion on October 9, 2018, requesting, inter alia, dismissal of the accusatory instrument as facially insufficient. The People have not responded by the Court’s deadline.After considering the defendant’s omnibus motion and all papers in the court file, the Court GRANTS the motion to dismiss for facial insufficiency. The defendant’s remaining motions are denied as moot. The Court directs the sealing to be stayed for thirty (30) days.DISCUSSIONTo be facially sufficient, an accusatory instrument must provide a “reasonable cause to believe that the defendant committed the offenses charged” (CPL §§100.40 [1] [b]; 70.10). The accusatory instrument must contain “facts of an evidentiary character supporting or tending to support the charges” (CPL §100.15 [3]). Furthermore, these facts must be supported by “non-hearsay allegations” (CPL §100.40 [1] [c]). A valid and sufficient accusatory instrument is a “nonwaivable jurisdictional prerequisite” (People v. Dreyden, 15 NY3d 100, 103 [2010]).In reviewing an accusatory instrument for facial sufficiency, “[s]o long as the factual allegations of an information give an accused notice sufficient 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. Konieczny, 2 NY3d 569, 575 [2004]; People v. Casey, 95 NY2d 354 [2000]). The standard of review for the court is whether the accusatory instrument makes out a prima facie case when the allegations are viewed in the light most favorable to the People (People v. Jennings, 69 NY2d 103, 114 [1986] ["The sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury"]; CPL §170.45).In this case, the complaint provides, in relevant parts, that on the evening of October 3, 2018:[PO Anthony Perlmutter of 44 PCT] observed defendant and two unapprehended male individuals seated on the front stairwell of a building in such a way so as to obstruct pedestrians or residents from entering and existing said building. Deponent further states that he was in uniform, identified himself as a police officer, and requested identification and pedigree information from defendant. Deponent further states that defendant refused to provide said information to deponent. Deponent further states that defendant stated in sum and substance: WHY DO YOU WANT MY NAME? I’M NOT GIVING YOU MY NAME.Deponent further states that he is a New York City Police Officer and was dressed in his official police uniform during the defendant’s actions and performing his official police duties and that the defendant interfered with said duties.Deponent further states that, when deponent attempted to place defendant under arrest for the aforementioned conduct, defendant failed his arms, locked his wrists, tensed his arms, and swayed his body, refusing to be handcuffed. Deponent further states that, after placing defendant under arrest, defendant continued sway his body and scream at deponent, stating in sum and substance: GIVE ME MY MONEY. YA’LL NOT TAKING ME BACK TO THE STATION.Deponent further states that, after placing defendant under arrest and into the patrol vehicle, he observed defendant stand up and press his body weight into the body of an officer standing at the vehicle’s door.(Ebrima Complaint).A person is guilty of Resisting Arrest under PL §205.30 when he “intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest.” An arrest is authorized if it is supported by a warrant or probable cause (People v. Alejandro, 70 NY2d 133, 135 [1987]). Also, a person is guilty of Obstructing 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 intimation, physical force or interference, or by means of any independently unlawful act” (PL §195.05). Thus, to sustain the charge of Resisting Arrest in this case, the complaint must allege sufficient facts to establish that the arrest was supported by probable cause; and in order to sustain the charge of Obstructing Governmental Administration, the complaint must allege sufficient facts to establish that the police officer was carrying out an “official function.” The complaint here does neither.Although the defendant is not charged with Disorderly Conduct, the complaint’s allegation that the defendant was “seated on the front stairwell of a building in such a way so as to obstruct pedestrians or residents from entering and exiting said building” is clearly phrased so as to invoke that statute and thereby justify the police officer’s questioning of the defendant. As a threshold matter, a person is guilty of Disorderly Conduct when “with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof…He obstructs vehicular or pedestrian traffic” (PL §240.20 [5]). People v. Jones is instructive on how to interpret the statute (9 NY3d 259, 262 [2007]). In Jones, the accusatory instrument alleged that the defendant stood in the middle of a public sidewalk with other individuals, causing pedestrians to walk around them. (id. at 261) In dismissing the disorderly count as facially insufficient, the Court of Appeals characterized the defendant’s conduct as nothing more than causing a “mere inconvenience” to the public and held that “[t]he conduct sought to be deterred under the statute is ‘considerably more serious than the apparently innocent’ conduct of defendant here” (id. at 262 citing People v. Carcel, 3 NY2d 327, 331 [1957]).In the case at bar, even less is alleged than in Jones. The complaint is silent as to whether there was even any pedestrian traffic whose movement the defendant obstructed. It is merely alleged that the defendant was sitting “in such a way so as to obstruct pedestrians or residents from entering and exiting” the building (Ebrima Complaint [emphasis added]). Certainly, sitting on the front steps of a building — even if it is “in such a way so as to obstruct pedestrians” — is not criminal. Quite to the contrary, such “stoop sitting” is a uniquely New York tradition that goes back many generations (see e.g. Georgia Dullea, As an Urban Rite, Stoop-Sitting Endures, NY Times, Aug. 15, 1989, also available at https://www.nytimes.com/1989/08/15/nyregion/as-an-urban-rite-stoop-sitting-endures.html [discussing what stoop sitting means to New Yorkers]; Suzanne Spellen, Walkabout: Stoop Sittin’, Brownstoner, Sept. 7, 2010, https://www.brownstoner.com/brooklyn-life/walkabout-stoop/ [last visited Jan. 23, 2019] [chronicling the history of stoop sitting in Brooklyn]). As far back as the early 1820s, one Englishman wrote of New York City street culture:It is customary to sit out of doors on the steps that ornament the entrances of the houses. On these occasions, friends assemble in the most agreeable and unceremonious manner. All sorts of cooling beverages and excellent confectionery are handed round and the greatest good humour and gaiety prevail.(Suzanne Spellen, supra) The following picture, which is kept by the Museum of the City of New York, shows a group of women sitting “in such a way so as to obstruct pedestrians” on the front steps of a New York City building in 1935:(Women Sitting on Front Steps in 1935, Museum of the City of New York, https://collections.mcny.org/CS.aspx?VP3=SearchResult&VBID=24UAYW59ZMD4C&SMLS=1&RW=1477&RH=702 [last visited Jan. 23, 2019]). Based on the facts contained in the complaint, there is no reasonable cause to believe that the defendant was committing the offense of Disorderly Conduct, nor is he adequately charged with being disorderly (see People v. Cross, 51 Misc3d 1210[A] [Crim Ct, Bronx County 2016] [dismissing a charge of Disorderly Conduct as facially insufficient when the defendant prevented the subway passengers from exiting through the turnstile by standing at the turnstile and asking them for fare]).Furthermore, even viewing the evidence in the light most favorable to the People, the police had no reason even to approach the defendant. Street encounters between the police and citizens are governed by the four levels outlined in People v. DeBour (40 NY2d 210 [1976]). At each level, depending on the degree of knowledge or suspicion by the police, a different level of intrusion into a citizen’s privacy is authorized. The police action must be justified at its inception (People v. Wheeler, 2 NY3d 370, 374 [2004]). At the most basic level under DeBour, a police officer may stop an individual to request information if he has some “objective, credible reason” to do so (DeBour at 223). At this level, the officer may request information about a person’s identity and her reason for being in the area (People v. Hollman, 79 NY2d 181, 191 [1992]).Before the police officer could approach the defendant in this case, he needed to have an objective, credible reason to do so. However, the complaint demonstrates no such reason. The complaint does not allege, for instance, that the defendant was acting in a suspicious manner, that he had contraband in plain view, or that the other individuals with him were acting suspiciously. The defendant was not even inside the building so as to lead the officer to suspect him of trespassing (People v. Almonte, 30 Misc3d 1234 [A] [Sup Ct, Bronx County 2011] [officer did not have objective, credible reason to approach the defendant who was exiting a "clean-halls" building known for crime]; cf. People v. Abad, 279 AD2d 358 [1st Dept 2001] [police officer, conducting "vertical patrol" of a residential building known for drug activity had objective and credible reason to ask the defendant about his reason for being in the building in light of the fact that another individual who entered the building at the same time as the defendant had been arrested for trespassing]; People v. Thompson, 260 AD2d 242 [1st Dept 1999] [police had an objective, credible reason for requesting basic information from the defendant because the officer knew many residents in the building, had patrolled the neighborhood for six years, and had never seen the defendant in the neighborhood before]). All that is alleged is that the defendant was merely sitting on the front stoop with two other individuals, which, without more, is not indicative of any criminality.Even assuming, arguendo, that the police had an objective, credible reason to request the defendant’s identification, there is insufficient allegation to support a charge of Obstructing Governmental Administration. An essential element of this charge requires obstructing “a public servant from performing an official function by means of intimation, physical force or interference, or by means of any independently unlawful act” (PL §195.05 [emphasis added]). Here, all that is alleged is that the defendant refused to give his name to the police. There are no allegations of intimidation, physical force or interference, or any other independently unlawful acts. A citizen has a “constitutional right not to respond” to a police inquiry, which includes the right to walk away or refusing to give answers (People v. Howard, 50 NY2d 583, 590 [1980]; see also People v. Young, 44 Misc3d 1204 [A], *5 [Crim Ct, NY County 2014]). The failure “to stop or co-operate by identifying oneself or answering questions [cannot] be the predicate for an arrest absent other circumstances constituting probable cause” (Howard, at 591-592).There may well be cities in this world in which the mere act of stoop sitting with friends on a fall evening gives the police license to ask you for identification and arrest you if you do not comply. Fortunately, New York City is not one of these places. Accordingly, the defendant’s refusal to give the officer identification and pedigree information does not constitute Obstructing Governmental Administration in the Second Degree and this charge must be dismissed.It directly follows that there can be no valid charge of Resisting Arrest in this case, since there is no reasonable view of the evidence that would support an authorized arrest. As discussed, the police had no justifiable reason to approach the defendant. The defendant’s refusal to give answers did not elevate the level of the encounter so as to permit the police to effectuate an arrest for Obstructing Governmental Administration, and the defendant’s stoop sitting did not constitute Disorderly Conduct. As such, the charge of Resisting Arrest must also be dismissed for facial insufficiency (People v. Peacock, 68 NY2d 675, 677 [1986] ["There being no probable cause that authorized defendant's arrest, she cannot be guilty of resisting arrest"]; People v. Perez, 851 N.Y.S.2d 747, 749 [4th Dept 2008] ["Because the arrest was not authorized, the evidence is legally insufficient to support the conviction of resisting arrest"]; People v. Stephen, 153 Misc2d 382 [Crim Ct, NY County 1992] [dismissing resisting arrest as the arrest was not authorized]).In light of the Court’s decision granting the dismissal motion, the defendant’s remaining motions are denied as moot.This constitutes the decision and order of this Court.Dated: January 24, 2019Bronx, New York
