Defendant, charged with Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05) (Count One), Resisting Arrest (Penal Law § 205.30) (Count Two) and two counts of Disorderly Conduct (Penal Law §§ 240.20(5) and 240.20(6)) (Counts Three and Four), moves to dismiss the Information for facial insufficiency. For the reasons discussed below, the Court DENIES the motion to dismiss Counts One, Two and Three, but GRANTS the motion to dismiss Count Four .^[FN1]

Defendant also moves for discovery and for suppression of physical evidence. As to these motions, the motion for discovery is DENIED as moot, since the People have complied with their discovery obligations. The motion to suppress physical evidence is GRANTED to the extent of ordering a Dunaway/Mapp hearing.

Defendant's motion raises, amongst other issues, the question whether a person can be charged with both Obstructing Governmental Administration in the Second Degree and Resisting Arrest for resisting his own arrest. Section II(F) of this Opinion, post, addresses this question and concludes that there is no legal impediment to charging a defendant under both statutes for the same act or acts of resistence.

I. FACTUAL BACKGROUND

A. The Allegations

According to the Information, at 2:15 p.m. on July 27, 2013, defendant and co-defendant David Diaz were in front of 163 West 125th Street, in Manhattan, participating in a demonstration. A police officer saw them walking up and down the sidewalk in a crowd of about twenty people; [*2]defendant was using a bullhorn for which he lacked a permit yelling "We need a revolution"; Diaz was also yelling.

Defendant and Diaz disregarded three instructions from a police lieutenant to stop using the bullhorn, and they continued to use it for 20 minutes. Their activity caused about thirty people to gather and blocked pedestrian traffic on the sidewalk. When a police captain approached and stood in front of the defendants to arrest them, Diaz pushed him. Another officer then tried to arrest defendant and Diaz, but they both resisted.

B. Legal Proceedings

On July 27, 2013, defendant was arraigned on an Information charging him with Obstructing Governmental Administration in the Second Degree (Count One), Resisting Arrest (Count Two) and two counts of Disorderly Conduct (Counts Three and Four), and was released on his own recognizance. Defendant filed the instant motion on September 16, 2013, and the People filed their response and a VDF on October 31, 2013.

II. DISCUSSION

The Information alleges that defendant, while participating in a street demonstration, refused to stop using a bullhorn, interfered with police officers' efforts to contain the situation, and resisted arrest. For the reasons that follow, the motion to dismiss Counts One, Two and Three is denied. The motion to dismiss Count Four, however is granted. Count Four charges a violation of § 240.20(6), which entails the refusal to comply with a lawful order to disperse. But since Information fails to allege that there was an order to disperse, that count is facially insufficient.

A. Facial Sufficiency in General.

To be facially sufficient, an information must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL §100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729 (1986); People v Alejandro, 70 NY2d 133 (1988); People v McDermott, 69 NY2d 889 (1987); People v Case, 42 NY2d 98 (1977). 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 intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL §70.10 (2).

This standard does not require that the accusatory instrument allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, the instrument need only contain allegations of fact that "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." People v Casey, 95 NY2d 354, 360 (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, 100.15; People v Jackson, 18 NY3d 738, 747 (2012). See also Casey, 95 NY2d at 360. Under these standards, the Information here is facially sufficient as to Counts One, Two and Three, but insufficient as to Count Four.

B. The Information

Because this motion challenges the facial sufficiency of the Information, the entirety of the factual recitation is reproduced here:

I observed [co-]defendant Diaz and defendant Mims [in front of 163 West [*3]125 Street in New York County at approximately 2:15 p.m.] standing on the sidewalk among a crowd of approximately twenty people. I know the defendant did not have a permit to use a bullhorn. I observed defendant Mims walking up and down the sidewalk using a bullhorn, yelling in substance: "We need a revolution." I also observed [co-]defendant Diaz participating in the protest in that he was yelling and walking up and down the sidewalk. I observed Lieutenant Juan Duran of Patrol Borough Manhattan North direct the defendant to stop using the bullhorn. Thereafter, I observed defendants continue to use the bullhorn for approximately twenty minutes and disregard approximately two more directions from Lieutenant Duran to stop. I observed that defendant's [sic] above described conduct caused a crowd of approximately thirty people to gather and completely blocked pedestrian traffic on the sidewalk at the above mentioned location.

Thereafter, I observed Captain Ernest Morales of the 34 Precinct approach defendants and stood in front of them to arrest the defendants and I then observed [co-]defendant Diaz use his shoulder to push into Captain Morales.

While arresting [co-]defendant Diaz and defendant Mims for the above described conduct, I observed each of them flail their arms, twist their body, and push their bodies into me and Police Officer Lanesha Riley, Shield 3015 of Patrol Borough Manhattan North to prevent us from putting handcuffs on them.

Defendant correctly argues that Court Four is facially insufficient. That Count charges the defendant with violating Penal Law § 240.20(6), which provides that a person is guilty of Disorderly Conduct when he "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse." Here, however, the Information does not allege that the order defendant defied was an order to "disperse" - the only order he is alleged to have defied was to "stop using the bullhorn."

In New York, courts are obliged to interpret a statute "to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used." People v. Williams, 19 NY3d 100, 103 (2012) (citation and internal quotation marks omitted). See also Penal Law § 5.00 (penal statutes "must be construed according to the fair import of their terms to promote justice and effect the objects of the law.") And, simply put, there is no "plain" meaning of the term "disperse" that could reasonably apply to an order to "stop using the bullhorn."

The most common meanings of "disperse" in ordinary usage are:1. to drive or send off in various directions; scatter: to disperse a crowd.

2. to spread widely; disseminate: to disperse knowledge.^[FN2]

1. to cease from, leave off, or discontinue: to stop running.

2. to cause to cease; put an end to: to stop noise in the street.

3. to interrupt, arrest, or check (a course, proceeding, process, etc.): Stop your work just a minute.

4. to cut off, intercept, or withhold: to stop supplies.

5. to restrain, hinder, or prevent (usually followed by from ): I couldn't stop him from going.^[FN3]

This is not the first decision concluding that an order other than one expressly ordering the defendant to "disperse" is not covered by § 240.20(6). In People v. Bezak, 11 Misc 3d 424, 436-37 (Crim Ct NY County 2006), aff'd, 26 Misc 3d 130(A) (App Term 1st Dept 2010), flyers and messages broadcast by a police van warning cyclists that they did not have a permit and would be arrested were "advisories or cautions" that "persons choosing to ride risked arrest and seizure of their bicycles" but could not be "characterized as an order to disperse."

Here, likewise, the allegation that defendant defied an order other than one to "disperse" renders the § 240.20(6) charge facially insufficient. The motion to dismiss Count Four is accordingly granted.

D. Count Three, Disorderly Conduct Under Penal Law § 240.20(5), Is Facially Sufficient

The Court, however, rejects defendant's argument that Court Three is facially insufficient. That Count charges defendant with violating Penal Law § 240.20(5), which provides that a person is guilty of Disorderly Conduct when "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... [h]e obstructs vehicular or pedestrian traffic."

First, the Information is sufficient on the obstructing pedestrian traffic element, since it alleges that defendant's actions "caused a crowd of approximately thirty people to gather and completely blocked pedestrian traffic on the sidewalk." See, e.g., People v. Gragert, 1 Misc 3d 646 (Crim Ct NY County 2003) (there was "little question" that defendant's acts constituted disorderly conduct where he "lay down on a sidewalk in midtown on a weekday morning and stayed there when ordered to move," thereby blocking "the normal flow of pedestrian traffic" and forcing "pedestrians to walk around" him) (internal quotation marks omitted); People v. Berardi, 180 Misc 2d 922, 923-24 (Crim Ct NY County 1999) (defendant's actions caused pedestrians to leave and avoid portion of sidewalk).

In addition, the Information also sufficiently alleges actions suggesting either the intent to cause or the risk of causing public alarm, since defendant is alleged to have been using a bullhorn to incite a group of some twenty other individuals to "revolution" on a crowded public street in the middle of a summer day. See, e.g., People v. Donnaruma, 38 Misc 3d 506, 512-13 (Albany [*5]City Ct 2012) (actions of "Occupy Albany" protestors charged with Disorderly Conduct showed the requisite intent).

Finally, Count Three should not be dismissed merely because defendant's actions took the form of a protest. Even assuming, without deciding, that defendant's activities constituted protected speech, such speech can be prosecuted under § 240.20(5) if accompanied by conduct that seriously impedes pedestrian traffic. Bezak, 11 Misc 3d at 436 (citing Cox v. New Hampshire, 312 U.S. 569 (1941) and Cantwell v. Connecticut, 310 U.S. 296 (1940)).

Accordingly, for these reasons, the motion to dismiss Count Three is denied.

E. Count Two, Which Charges Resisting Arrest, Is Facially Sufficient

The police had probable cause to arrest defendant for violating Penal Law § 240.20(5). Accordingly, since the Information alleges an "authorized" arrest, Penal Law § 205.30, and since it also alleges that defendant did in fact resist arrest, the motion to dismiss Count Two is denied.

F. Count One, Which Charge Obstructing Governmental Administration, Is Facially Sufficient

The Information alleges two instances in which defendant might have committed Obstructing Governmental Administration in the Second Degree. The first occurred when he defied three orders to stop using the bullhorn. The second occurred when he resisted his own arrest by flailing his arms and using his body to avoid being taken into custody.^[FN4] The first of these incidents is insufficiently pled, since the Information does not allege a factual basis for the officer's belief that defendant lacked a permit to use the bullhorn. However, since there is no legal impediment to charging a defendant with both Obstructing Governmental Administration and Resisting Arrest for resisting his own arrest, the Information is facially sufficient as to the second incident. Accordingly, the motion to dismiss Count One is denied.

1. The Conclusory Allegation that Defendant Lacked a Permit Is Insufficient to Establish the Lawfulness of the Order to Stop Using the Bullhorn

The Information cannot sustain a charge of Penal Law § 195.05 based on defendant's defiance of the orders to stop using the bullhorn. Because the Information does not contain facts from which the Court might conclude that those orders were lawful, the Information is facially insufficient on this theory of culpability.

As pertinent here, a person violates Penal Law § 195.05 when he "attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference." The "official function" element requires that the public servant's action be "authorized," which in turn requires that the action be lawful. Thus, for example, in People v. Sibblies, 98 AD3d 458, 459 (1st Dept 2012), the court upheld a conviction under § 195.05 where the defendant refused a police officer's direction to turn over her driver's license and registration; the order was lawful because the officer saw her make an illegal left turn.

However, a person does not violate this section by refusing to comply with an unlawful order. Thus, for example, in In re Armell N., 28 Misc 3d 528, 532 (Family Ct Kings County 2010), police officers approached a juvenile who was occupying two seats on a subway train. He [*6]complied with their order to occupy only one seat - a lawful order - but refused to exit the train when they ordered him to. Id. The court found that he could not be charged with Obstructing Governmental Administration in the Second Degree for defying that second order, because the order was not lawful; the police had no legal basis for ejecting the juvenile from the train once he complied with the order to take only one seat. Id.

Here, the Information does not allege facts that would permit the Court to conclude that the orders directing defendant to stop using the bullhorn were lawful. All the Information indicates is that the officer who it swore it out "kn[e]w the defendant did not have a permit to use a bullhorn." But absent some facts that provide a basis for the officer's knowledge, that assertion alone is not enough.

For an accusatory instrument to be sufficient, it must contain "facts of an evidentiary character" in support of every element of the charged offense or offenses. CPL § 100.15(3). And the Court of Appeals has repeatedly held that "conclusory allegations" are not "facts of an evidentiary character." Thus, for example, in People v. Dumas, 68 NY2d 729, 731 (1986), an accusatory instrument was insufficient when it contained "a conclusory statement that the defendant sold marihuana, but [was not] supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually marihuana." In People v. Dryden , 15 NY3d 100, 104 (2010), the same was true for a "conclusory statement that an object recovered from a defendant is a gravity knife." At a minimum, the instrument should "explain briefly, with reference to [the deponent's] training and experience, how he or she formed the belief that the object observed in defendant's possession was a gravity knife." Id.

The allegation here that the officer "kn[e]w the defendant did not have a permit to use a bullhorn" is conclusory, and hence insufficient, in precisely the same manner. The Information contains no facts establishing the basis for the officer's belief that defendant lacked a permit to use a bullhorn.^[FN5] What is missing - and what Dumas and Dryden clearly require - is some explanation of an "evidentiary character" of how the officer came to acquire this knowledge. Absent that, there is an insufficient basis to conclude that the officer had a lawful basis for ordering the defendant to stop using the bullhorn. Accordingly, the Information is facially insufficient as to this theory of Obstructing Governmental Administration in the Second Degree.

2. Since a Defendant Can Be Charged with Both Obstructing Governmental Administration in the Second Degree and Resisting Arrest for Resisting His Own Arrest, Count One is Facially Sufficient

The Information here presents a second possible theory for prosecuting defendant under § 195.05; his efforts to resist his own arrest. The allegations in the Information describing defendant's behavior during that episode are sufficient to make out a prima facie case of Obstructing Governmental Administration in the Second Degree. Effectuating an arrest is clearly an official function and, as noted in Subsections II(D) and (E), supra, the arrest here was authorized, since the police had probable cause to arrest defendant for disorderly conduct, in [*7]violation of Penal Law § 240.20(5). Finally, the facts alleged - defendant twisted and pushed his body and failed his arms - sufficiently make out the "physical interference" element.

The only real question that remains, then, is whether there is any basis for concluding that a defendant cannot be charged, as here, with both Obstructing Governmental Administration in the Second Degree and Resisting Arrest for resisting his own arrest. The Court concludes that a defendant can be charged with both offenses, if the facts alleged support both charges.

Obstructing Governmental Administration in the Second Degree and Resisting Arrest are closely related offenses. However, it is clear that, while there is overlap in their scope, they do not cover identical conduct. Section 195.05 covers official functions virtually without limitation, while § 205.30 covers only arrests. One illustration of this is People v. Hasenflue, 169 Misc 2d 766, 769 (Sup Ct Ulster County 1996). There, defendant's post-arrest conduct, which included his refusing to be fingerprinted and an attempt to leave the police station, could not serve as the basis for a Resisting Arrest charge, because the arrest itself had already been effected. Id. at 768. But this same conduct made out the offense of Obstructing Governmental Administration in the Second Degree. Id. at 769. Conversely, a person can violate § 205.30 through conduct that would not satisfy the requirement in § 195.05 that there be "physical force," by, for example, fleeing.^[FN6]

Nevertheless, that an arrest is one type of official function that can be covered by § 195.05 has long been recognized, and the statute is regularly invoked in cases where the defendant interferes with someone else's arrest, as long as that arrest is lawful. See, e.g., People v. Shea, 68 Misc 2d 271, 271-71 (Yonkers Ct Spec Sess 1971) (defendants surrounded police officer who had a suspect in custody, allowing suspect to escape). But, while cases are not typically charged in this manner, there is no legal impediment to charging a defendant with violating both § 195.05 and § 205.30 for resisting his own arrest. See, e.g., Matter of Verna C., 143 AD2d 94, 95 (2d Dept 1988) (juvenile charged with both offenses for resisting her own arrest; both counts reversed for failure to prove the arrest was authorized); People v. Lupinacci, 191 AD2d 589 (2d Dept. 1993) (same).

Here, as noted above, the facts alleged in the Information with respect to defendant's efforts to evade arrest make out a prima facie case ofboth Obstructing Governmental Administration in the Second Degree and Resisting Arrest. Since the defendant can be charged with both offenses for resisting his own arrest, the Information is facially sufficient on this basis as to Count One. The motion to dismiss Count One is accordingly denied.

III. CONCLUSION

For the foregoing reasons, defendant's motion dismiss to Count Four is granted. The motion to dismiss Counts One, Two and Three is denied. His motion for discovery is denied as moot, and his motion to suppress is granted to the extent of ordering a Dunaway/Mapp hearing.

This constitutes the Decision and Order of the court. [*8]

Dated: January 9, 2014_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court