The defendant, Warmann Dipoumbi, is charged with Assault in the Third Degree (Penal Law [PL] §120.00[1]), Obstructing Governmental Administration (PL §195.05) and Reckless Driving (Vehicle and Traffic Law [VTL] §1212). He has moved for an order dismissing the accusatory instrument pursuant to CPL 170.30(1)(a) and 170.35(1) for lack of facial sufficiency. The People oppose this motion.

The self-authenticating complaint reads in relevant part:

Deponent [Police Officer Armando Urbina of the Surface Transportation Enforcement District] states that [on September 16, 2008, at about 08:47 hours at East 47th Street and Vanderbilt Avenue in the County of New York] deponent observed the defendant driving a yellow taxicab through an intersection near the above location without stopping at a stop sign.

Deponent states that while issuing a summons to the defendant and [sic] for the above conduct, deponent observed the defendant while defendant was seated behind the steering wheel, open the driver side [sic] door and strike deponent about the arm with the said door of said taxicab causing swelling and substantial pain.

It is axiomatic that facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution. People v Alejandro, 70 NY2d 133 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must comport with three requirements: (1) allege facts of an evidentiary character supporting or tending to [*2]support the charges, pursuant to CPL 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charges in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1) (a-c). This third requirement is what is referred to as a "prima facie" case. People v McDermott, 160 Misc 2d 769 (Dist Ct, Nassau County 1994). A prima facie case, also referred to as "legally sufficient evidence," means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See CPL 70.10[1]).

PL § 120.00 (1) provides that: "[a] person is guilty of assault in the third degree when: [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person." "Physical injury" is defined as "impairment of physical condition or substantial pain." See PL §10.00(9). Thus, the facts alleged in the complaint must establish both the intent to cause "physical injury" and that such "physical injury" was actually caused. The complaint in this case is insufficient in both regards.

While ordinarily, questions of sufficiency are left to the trier of fact, "there is an objective level . . . below which the question is one of law, and the charge should be dismissed." Matter of Philip A., 49 NY2d 198, 200 (1980) (quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p. 330). In this case, the complaint merely alleges that the defendant opened the taxicab door into the complainant's arm causing "swelling and substantial pain." The requisite intent to cause physical injury cannot be inferred from the facts as alleged. In drafting the current assault statute, the Temporary Commission on Revision of the Penal Law and Criminal Code made it clear that "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives, are not within the definition" of the statute. Matter of Philip A, 49 NY2d at 200, quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, at 330.

Furthermore, the injury alleged comes nowhere near the definition of "physical injury" which requires either "impairment of physical condition" or "substantial pain." Nothing in the accusatory instrument alleges any impairment of the complainant's use of his arm, and the People do not argue there was any such impairment.

Despite the fact that the complainant alleges that he suffered "substantial pain" after the taxicab door hit his arm, there is no factual support for such allegation. The only injury alleged is a "swelling" to the complainant's arm. There is no allegation concerning the duration of the pain or the seriousness; nor does the complaint allege that any medical treatment was sought. Cf. People v. Oquendo, 134 AD2d 203, 204 (1st Dep't 1987)(dismissing a conviction for assault after trial where the injury consisted "entirely of pain experienced at the time of the commission of the crime," is of undetermined severity, with "no indication of any after affects").

Nor can one reasonably infer that "substantial" pain was likely to have resulted from the impact of the taxicab door on the officer's arm. The complaint contains no description of the amount of force that the defendant employed to open the door. Unlike with a punch to the face (see, e.g., People v. Malone, 180 Misc 2d 744, 745 [Crim Ct, NY County 1999]), it is unreasonable, without more, to infer that the degree of pain experienced by the [*3]complainant was "substantial." Merely invoking the statutory language without providing any factual support from which a finding of substantial pain could arise will not cure an otherwise defective complaint.

As noted by the court in the seminal case of People v. Henderson, 92 NY2d 677, 680 (1999), ". . . in defining physical injury' as consisting of substantial pain,' the Legislature intended to set a threshold of something more than a mere technical battery (see, People v Rojas, 61 NY2d 726, 727 [1984])." ^[FN1] The allegations in the complaint fail to plead a "physical injury" for purposes of PL § 120.00(1). Accordingly, the court finds this count of the information to be facially insufficient, and it is hereby dismissed.

PL §195.05 provides in relevant part the following:

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 characterizing the purpose in enacting this statute's predecessor, PL §1851, the Appellate Term, First Department, held in People v. Crayton, 55 Misc 2d 213, 216 (1967) that "[the] obvious intent . . . is that the police go about their business without any obstacles put in their way . . . ."

The defendant contends that the accusatory instrument fails to establish reasonable cause to believe that he prevented or attempted to prevent the deponent police officer from performing an official function by means of intimidation, physical force or interference. This Court agrees.

Presumably, the official function that the defendant allegedly prevented or tried to prevent the deponent police officer from performing was issuing a traffic summons to him for failing to obey a stop sign. The accusatory instrument does not allege that the officer was prevented from executing that task. Even if the officer did not issue the summons after his arm was struck by the taxicab's door when it was opened by the defendant a causal relationship between that impact and an unissued summons is not made out. There is no factual allegation that the officer was rendered physically unable to issue the summons after his arm was struck. Equally missing from the complaint is any factual basis from which to infer that the defendant opened the door and struck the officer for the purpose of preventing him from issuing the summons. Even if the defendant's alleged conduct could be viewed as negligent or reckless given the proximity of the officer to the taxicab, the statute requires that the defendant's act to have been purposeful. "One cannot attempt to commit an act which one does not intend to commit." People v. Terry, 104 AD2d [*4]572 (2d Dept 1984).

Accordingly, the defendant's motion for an order dismissing the count of Obstruction of Governmental Administration in the Second Degree is hereby granted.

VTL §1212, in pertinent part, proscribes the following conduct:

Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor. [Emphasis added.]

The Penal Law defines reckless conduct as follows:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense 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)][Emphasis added].

The facts alleged in the accusatory instrument neither show that the defendant interfered with the free and proper use of the public highway nor that he unreasonably endangered the use of the public highway. Failure to stop at a stop sign is a violation of VTL §1172(a), a traffic infraction (VTL §1800[a]). Reckless Driving is an unclassified misdemeanor. VTL §1212. "The acts and omissions constituting [Reckless Driving] must be specifically stated in the information." Luckie v. Goddard, 171 Misc 774, 777 (Sup Ct., Monroe County 1939). As the Court of Appeals concluded about the predecessor ^[FN2] to the current VTL §1212 statute in People v. Grogan, 260 NY 138, 144 (1932), guilt of this crime requires "something more than negligence." "Reckless driving . . . means the running or operation of an automobile under such circumstances as to show a reckless disregard of the consequences." Id.Failure to come to a stop at a single stop sign and nothing more does not make out the crime of Reckless Driving. People v. Garo, 208 Misc 496, 498 (County Ct, Broom County 1955). In the absence of facts alleging that defendant Dipoumbi's running of the stop sign created an actual and apparent, as opposed to a theoretical, danger to the person or property of another, the behavior alleged would not satisfy the VTL §1212 statute.

According, the defendant's motion to dismiss the count of Reckless Driving for facial [*5]insufficiency is hereby granted.

This opinion shall constitute the decision and order of this court.

Dated:April 28, 2009

New York, New York

_______________________

Hon. Felicia A. Mennin, JCC