New York City Legal Aid Society (E. Deronn Bowen of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi and Merri Turk Lasky of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Michelle A. Armstrong, J.), rendered July 17, 2014. The judgment convicted defendant, upon his plea of guilty, of obstructing governmental administration in the second degree and imposed sentence.

ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.

Defendant was charged with attempted tampering with physical evidence (Penal Law §§ 110.00, 215.40 [1] [a]) and obstructing governmental administration in the second degree (Penal Law § 195.05). The accusatory instrument alleged that a police officer had observed "an apprehended other" hand a quantity of "loose green vegetative matter" to defendant and had further observed defendant hand a sum of U.S. currency to that other person. It also alleged that the officer had observed defendant in possession of marihuana in his right hand in a public place open to public view and that, upon the officer's "approaching [] defendant," defendant had placed the marihuana in his mouth and swallowed it, thereby destroying it and preventing the recovery of "said evidence." After waiving prosecution by information, defendant pleaded guilty to [*2]obstructing governmental administration in the second degree in satisfaction of the accusatory instrument and he was sentenced to a conditional discharge. On appeal, defendant challenges the facial sufficiency of the count to which he pleaded guilty, contending that the accusatory instrument failed to allege the existence of a legitimate governmental or official function or that his actions were specifically intended to prevent such function.

The facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Lucas, 11 NY3d 218, 220 [2008]; People v Konieczny, 2 NY3d 569, 573 [2004]). Here, since defendant expressly waived prosecution by information, the accusatory instrument's legal sufficiency must be evaluated under the standards which govern that of a misdemeanor complaint (see People v Dumay, 23 NY3d 518, 524 [2014]), which is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3]) and provides reasonable cause to believe that the defendant committed the offense charged (see CPL 100.40 [4] [b]; People v Dumas, 68 NY2d 729, 731 [1986]). "So long as the factual allegations of an [accusatory instrument] 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 Casey, 95 NY2d 354, 360 [2000]; see Dreyden, 15 NY3d at 103; People v Kalin, 12 NY3d 225, 231-232 [2009]; Konieczny, 2 NY3d at 576). We note that we must review the facial sufficiency of the only count challenged, to which defendant pleaded guilty (see People v Dumay, 23 NY3d 518; People v Washington, 50 Misc 3d 89 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; but see People v Lamb, 49 Misc 3d 135[A], 2015 NY Slip Op 51483[U] [App Term, 1st Dept 2015], lv denied 26 NY3d 1089 [2015]; People v Lineberger, 46 Misc 3d 152[A], 2015 NY Slip Op 50335[U] [App Term, 1st Dept 2015], lv denied 27 NY3d 1001 [2016]; People v Acevedo, 46 Misc 3d 150[A], 2015 NY Slip Op 50288[U] [App Term, 1st Dept 2015], lv denied 26 NY3d 1142 [2016]).

Penal Law § 195.05 provides, in pertinent part, that 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." It is an essential element of obstructing governmental administration in the second degree that a public servant was performing an official function at the time of the offense and, therefore, the accusatory instrument must contain allegations delineating what the obstruction and official function consisted of (see People v Stewart, 32 Misc 3d 133[A], 2011 NY Slip Op 51445[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; People v Cacsere, 185 Misc 2d 92 [App Term, 2d Dept, 9th & 10th Jud Dists 2000]).

Here, the accusatory instrument failed to allege that defendant had been aware of the police officer's presence at the scene, as it failed to allege that the police officer had been in uniform, that he had identified himself as being a police officer, or that defendant had even seen [*3]him (see People v Roman, 23 Misc 3d 56 [App Term, 1st Dept 2009]; People v Mitchell,17 Misc 3d 1103[A], 2007 NY Slip Op 51805[U] [Crim Ct, Kings County 2007]). Additionally, the accusatory instrument failed to allege that the police officer had directed or ordered defendant to engage in or refrain from certain activity (see People v Beam, 22 Misc 3d 306 [Crim Ct, NY County 2008]; People v Berdini, 18 Misc 3d 221 [Crim Ct, NY County 2007]; People v Vargas, 179 Misc 2d 236 [Crim Ct, NY County 1998]). Moreover, it did not state a basis for the officer's conclusion that the "loose green vegetative matter," which was allegedly swallowed, was, in fact, marihuana (see Dumas, 68 NY2d at 731; Beam, 22 Misc 3d at 309; Berdini, 18 Misc 3d at 224; cf. People v Bula, 22 Misc 3d 1121[A], 2009 NY Slip Op 50210[U] [Crim Ct, NY County 2009]; People v Mercedes, 194 Misc 2d 731 [Crim Ct, NY County 2003]). Consequently, even when the complaint is "given a fair and not overly restrictive or technical reading" (Casey, 95 NY2d at 360), the count charging defendant with obstructing governmental administration in the second degree was facially insufficient, since it failed to allege "facts of an evidentiary character" (CPL 100.15 [3]) supporting or tending to support that charge or demonstrating "reasonable cause" (CPL 100.40 [4] [b]) to believe that defendant had committed that offense.

Under the particular circumstances presented,^[FN1] we are of the opinion that there would be little penological purpose in remitting the case for further proceedings on the remaining count of the accusatory instrument (see CPL 470.55 [2]), attempted tampering with physical evidence, since defendant has already served his sentence. Therefore, as a matter of discretion in the interest of justice, we dismiss the entire accusatory instrument (see People v Hightower, 18 NY3d 249 [2011]; Dreyden, 15 NY3d at 104; but see Lamb, 49 Misc 3d 135[A], 2015 NY Slip Op 51483[U]).

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: April 12, 2019