DECISION AND ORDER The defendant, charged by a superseding misdemeanor information with one count of Petit Larceny (PL §155.25), one count of Harassment in the Second Degree (PL §240.26) and one count of Obstructing Governmental Administration in the Second Degree (PL §195.05), makes this omnibus motion seeking an order: 1) dismissing Count Three of the accusatory instrument pursuant to CPL §170.30 on the grounds that it is facially insufficient; 2) suppressing physical evidence recovered from the defendant, or in the alternative, a Dunaway/Mapp hearing; 3) suppressing statements made by the defendant, or in the alternative, a Dunaway/Huntley hearing; 4) suppressing any identification of the defendant, or in the alternative, a Dunaway/Wade hearing; and 5) precluding defendant’s prior convictions and/or bad acts. The People have consented to Huntley and Sandoval hearings. The People otherwise oppose the defendant’s motion. With respect to defendant’s request for Dunaway and Mapp hearings, defendant has failed to provide any sworn allegations of fact to support his conclusory allegation that his arrest was unlawful or that the police recovered physical evidence as the result of an illegal search. The Court finds that the defendant has failed to raise a factual challenge to the legality of his arrest. His mere unsupported assertion that the police lacked probable cause to arrest him does not mandate a probable cause hearing. See People v. Jones, 95 N.Y.2d 415 (2001). Likewise, his unsupported assertion that the police recovered physical evidence as the result of an illegal search does not mandate a Mapp hearing. CPL §710.60(3)(b). As such, the defendant’s motions for Dunaway and Mapp hearings are denied. Defendant’s motion for a Wade hearing is denied at this time based upon the allegation in the victim’s supporting deposition that she and the defendant are known to each other. Rather, the Court orders that a Rodriguez hearing be held to evaluate the victim’s familiarity with the defendant. If, after holding a Rodriguez hearing, the Court determines that there is legally insufficient familiarity between the parties, the defendant may renew her application for a Wade hearing to determine whether the in person identification of the defendant was unduly suggestive. See CPL §710.60(3)(b). The defendant’s request for a Huntley hearing is granted on consent of the People. The Sandoval motion is also granted, and shall be renewed before the trial judge. Since the People have not indicated that they plan to introduce any evidence of defendant’s prior bad acts on their direct case, the motion for a Ventimiglia hearing is denied as premature at this time. In the event the People later indicate they plan to introduce such evidence, the defendant may renew the motion before trial. The defendant also moved to dismiss Count Three of the accusatory instrument on the ground that it is facially insufficient. The sufficiency of an information must be determined by a reading of the face of the instrument itself, together with any supporting depositions accompanying it. People v. Casey, 95 NY2d 354, 361 (2000); People v. Grabinski, 189 Misc2d 307 (App Term, 2d Dept 2001). Pursuant to CPL §100.40(1) an information is sufficient on its face when the allegations of the factual portion of the accusatory instrument, together with any supporting depositions, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the instrument and non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof. People v. Alejandro, 70 N.Y.2d 133 (1987). Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. CPL §70.10(2). In the case at bar, with respect to the Obstructing Governmental Administration in the Second Degree charge, PO Beato of the Mount Vernon Police Department alleges in the accusatory instrument the evidentiary facts that the defendant did intentionally obstruct, impair or prevent an officer from performing an official function by refusing your deponent’s lawful orders to stop running away from the police. The defendant contends that the accusatory fails to allege facts sufficient to establish that the defendant’s actions in running away was an unlawful act nor was it the type of physical interference contemplated by the statute. In opposition, the People assert that the defendant matched the description of a suspect in a robbery and defendant’s running away from the officer after he had been told to stop physically interfered with the police officer’s official function in that he was investigating a crime in progress. Penal Law §195.05 provides: A person is guilty of obstruction of 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,… A facially sufficient information charging the crime of obstructing governmental administration in the second degree must set forth adequate factual allegations to establish that the public servant was engaged in a specific action at the time of the physical interference, or independently unlawful act, and not just on duty. People v. Joseph, 156 Misc 2d 192 (Crim Ct Kings County 1992); People v. Estime, supra. Moreover, when charging obstruction of governmental administration in the second degree the factual allegations contained therein must delineate what the obstruction and official function consist of to be sufficient. People v. Cacsere, 185 Misc 2d 92 (2d Dept 2000) (citing Matter of Carlos G., 215 AD2d 165). As the defendant contends, fleeing from a police officer, in and of itself, is not a crime and does not amount to the type of physical force or interference required by the statute even if the defendant is a suspect of a police investigation. People v. Tillman, 184 Misc.2d 20 (Auburn City Court 2000)(holding that defendant’s flight from a police officer conducting a narcotics investigation, where the defendant was a suspect, does not constitute physical interference with an official function, and as such, does not constitute the crime of obstructing governmental administration); People v. Brown, 46 Misc3d 1212(A)(Rochester City Ct 2015)(holding that where defendant was a suspect of a possible burglary his flight from the police and refusal to stop when ordered to do so did not constitute the crime of obstructing governmental administration); People v. Offen, 96 Misc2d 147 (Crim Ct NYC 1978). In both People v. Case, 42 NY2d 98 (1977) and Matter of Davan L, 91 NY2d 88 (1997), the Court of Appeals held that physical interference is required to support the charge of Obstructing Government Administration. Based upon the foregoing, the Court grants defendant’s motion to dismiss Count Three of the accusatory instrument, Obstructing Governmental Administration in the Second Degree, for facial insufficiency. This constitutes the Decision and Order of this Court. Dated: November 29, 2021
