On January 22, 2004, the Honorable Charles A. Posner held these four defendants in summary contempt after they refused orders from court officers, police officers and the judge to stop fighting and yelling in a hallway adjacent to three courtrooms in the Kings County Criminal Courthouse. Judge Posner adjudicated each defendant in contempt of court and sentenced each defendant to 30 days' jail. The next day, the defendants were each charged in Criminal Court complaints with Reckless Endangerment in the Second Degree (Penal Law [PL] § 120.20), Obstructing Governmental Administration in the Second Degree (PL § 195.05), three counts of Criminal Contempt in the Second Degree (PL § 215.50[2]), and Disorderly Conduct (PL § 240.20[1]), based on these same events. The defendants each now move to dismiss the complaints on Double Jeopardy grounds.^[FN1] In the alternative, Boston moves to dismiss the charge of Reckless Endangerment for facial insufficiency.

For the reasons that follow, the Court grants the defendants' motions to dismiss the Penal Law Criminal Contempt charges and Boston's motion to dismiss the Reckless Endangerment charge for facial insufficiency. The remaining motions are denied.

On the morning of January 22, 2004, Boston, Crespo, Street and Cobb engaged in a loud fight in the sixth floor hallway of the Kings County Criminal Courthouse, while proceedings were underway in three nearby courtrooms, All Purpose ("AP") Parts 3, 5 and 6. Defendants later gave [*2]differing accounts of why the fighting broke out: Boston claimed that he was leaving AP-6 when he was jumped by four others (Mins. of 1/22/04 at 3), while Cobb, Street and Crespo claimed that Boston started fighting with Crespo, and Cobb and Street went to Crespo's defense (id. at 6-7, 10-11, 14). The fighting and yelling were so loud that court officers from all three courtrooms went into the hallway to stop the commotion. This disrupted proceedings in AP-3, where Judge Charles A. Posner was in the middle of handling a case. As his courtroom emptied out and people told him that there was a riot in the hallway, Judge Posner left the courtroom and saw each of the defendants fighting and struggling with court officers and police officers who were trying to break up the fight (id. at 2-3, 4, 5-6, 9, 12-14). Judge Posner ordered the defendants to stop fighting and, when they did not, he held each of them in summary criminal contempt under the Judiciary Law. After giving each one an opportunity to address the court, Judge Posner executed sentences of 30 days' jail for each defendant.

Thereafter, each defendant was separately charged in a Criminal Court complaint with Criminal Contempt in the Second Degree, Reckless Endangerment in the Second Degree, Obstructing Governmental Administration in the Second Degree and Disorderly Conduct for the same events described above. The complaining witnesses in each case were Sergeant John Marsh, who is a court officer in AP-6, Sergeant Teresa Maguire, who is a court officer in AP-5, and Judge Posner.

Both Boston and Cobb argue that People v Colombo, 31 NY2d 947 (1972), bars their prosecution for Criminal Contempt under the Penal Law following the adjudication of summary contempt under Judiciary Law § 750(A)(1). Boston argues further that CPL §§ 40.20(2)(a) and 40.20(2)(b) bar his prosecution for Obstructing Governmental Administration and Disorderly Conduct for two reasons: because the acts that would establish those offenses are the same as those on which the contempt citation was based, and because offenses against "the administration of government" and "the public order" are "the very same harm or evil that is addressed by the judicial authority to summarily punish for contempt." (Wasserman Aff. at ¶¶ 5-8.) As to the charge of Reckless Endangerment, Boston argues that the facts supporting that charge are "identical and indistinguishable from those on which the other charges are based." (Id. at ¶ 9.)

In addition to relying on Colombo, Cobb and Street cite In re Corbin v Hillery, 74 NY2d 279 (1989), and Cobb and Crespo cite People v Wood, 95 NY2d 509 (2000), for the proposition that the present case must be dismissed. Indeed, Cobb claims that the People have conceded that he was already prosecuted, convicted and sentenced for the same conduct on which the current Penal Law charges are based. (Karpf Aff. at ¶¶ 9-10.)

Finally, both Boston and Cobb urge the Court to disregard all of the arguments advanced by the People, because they rely on federal cases that Cobb characterizes as "outdated" and "rendered obsolete due to being overturned by the New York Court of Appeals" in Colombo and People v Leone, 44 NY2d 315 (1977). (Boston Mem. at 1, Karpf Reply Aff. at ¶ 2.)

2. The People's Contentions

The People argue first that the defendants were not previously prosecuted for contempt. Analyzing the "same elements" test of Blockburger v United States, 284 US 299 (1932), the People contend that Double Jeopardy principles do not bar the current charges because the elements of Penal [*3]Law Criminal Contempt, Obstructing Governmental Administration, Reckless Endangerment and Disorderly Conduct are all different from the elements of Judiciary Law contempt. The People distinguish Colombo and Leone and rely on federal cases in which defendants were summarily punished for contempt of court that occurred in the presence of the Court, and then prosecuted for the substantive crimes which they committed simultaneously. The People also make a policy argument, asserting that if Double Jeopardy principles barred the present prosecutions, judges could not summarily punish criminal contempt occurring in their presence for fear of immunizing defendants from prosecution for substantive criminal offenses committed at the same time.

3. The Court's Analysis

Under the Federal Constitution, double jeopardy arises only upon separate prosecutions arising out of the same "offense" (US Const 5th, 14th Amends; Blockburger v United States, 284 US 299). Dissatisfied with such limited protection, the Legislature in 1970 adopted a statute (CPL 40.20 [L 1970, ch 996]) providing a comprehensive protection against separate prosecutions for "two offenses based upon the same act or criminal transaction" (CPL 40.20(2); see, Matter of Abraham v Justices of N.Y. Supreme Ct., 37 NY2d 560, 565).

A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:

(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or

(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; . . .

[A] person is "prosecuted" for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state . . . and when the action either:

(a) Terminates in a conviction upon a plea of guilty; or

(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.

A. The Penal Law Contempt Charges Must Be Dismissed. [*4]

The People appear to be correct that the defendants have never previously been prosecuted for their conduct in this courthouse on January 22, 2004, as the term "prosecuted" is defined in CPL § 40.30 (See Peo's Mem. at 6, 10; Peo's Aff. in Response to Defts' Reply at ¶ 3). The summary contempt proceedings were not initiated by accusatory instruments, did not terminate in either a trial or a guilty plea, and no witnesses were sworn. Rather, after Judge Posner personally witnessed the fighting and struggling going on in the hallway outside the courtrooms, he directed the defendants to stop, held each defendant in contempt when they disregarded his order and kept fighting and struggling, gave each defendant an opportunity to address the court, and then executed sentence.^[FN2]

Nevertheless, the cases cited by the defendants make it clear that they cannot be prosecuted now for Criminal Contempt under the Penal Law for the same conduct for which Judge Posner has already held them in summary contempt under the Judiciary Law. In People v Colombo, 31 NY2d 947, 949 (1972), the Court of Appeals held that a defendant who had previously been punished for contempt of court under Judiciary Law § 750, for refusing to testify before the Grand Jury despite a grant of immunity, could not be indicted "for the same act and offense." The Court held that "[t]the same evidence proves the Judiciary Law contempt for which defendant was previously punished and the Penal Law contempt charged in the indictment, and the elements of the two contempt charges are the same." Id. Because Colombo's punishment under the Judiciary Law was for criminal contempt, the Double Jeopardy clause barred his subsequent indictment under the Penal Law. Id.^[FN3] Colombo therefore must stand for the proposition that a summary criminal contempt proceeding under the Judiciary Law is a prosecution for purposes of CPL § 40.20 analysis.^[FN4] See People v Leone, 44 NY2d 315, 319 (1978) (Fuchsberg, J., concurring) ("The dignity of our courts having thus been affronted, its vindication could follow one of two statutory avenues, either that prescribed by sections 750 and 751 of the Judiciary Law or the one to be found in sections 215.50 and 215.51 of the Penal Law."); In the Matter of Capio v Justices of the Supreme Court, Kings County, 41 AD2d 235, 236-28 (2d Dept 1973) (Double Jeopardy principles prohibited indictment of defendant for failing to answer Grand Jury's questions where he had previously been held in contempt under Judiciary Law for the same refusal to testify), affd, 34 NY2d 603 (1974); People v [*5]Failla, 74 Misc2d 979 (Nassau County Ct 1973) (to the same effect).^[FN5]

Because the prior adjudication of summary criminal contempt must be considered a prosecution, CPL § 40.20 requires dismissal of the Penal Law contempt charges here.^[FN6] Judiciary Law § 750(A)(1) permits a court of record to punish for criminal contempt anyone found guilty of "[d]isorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority." Penal Law § 215.50(2) provides that a person is guilty of criminal contempt in the second degree when he engages in "[b]reach of the peace, noise, or other disturbance, directly tending to interrupt a court's proceedings." Under PL § 40.20(2)(a), the two offenses do not have substantially different elements. Although Judiciary Law contempt contains more elements, both statutes share a common one: the defendant's actions must have directly tended to interrupt the court's proceedings to violate either statute. While "disorderly, contemptuous, or insolent behavior" and "breach of the peace, noise or other disturbance" are not identical, it cannot be said that they are substantially different. Indeed, it seems unlikely that a breach of the peace, noise or other disturbance would not also be disorderly behavior. Moreover, the acts that established the contempt before Judge Posner are not clearly distinguishable from those on which the present charges rest, but are the same.

Turning to PL § 40.20(2)(b), it, too, seems to require dismissal of the Penal Law contempt charges. As noted above, the two statutes contain one common element, and Penal Law contempt has an additional element that is not substantially different from an element of Judiciary Law contempt. Moreover, both statutes are designed to prevent the same kind of harm or evil, specifically, interference with and the disruption of the court's orderly process. See also People v Wood, 95 NY2d 509, 511-12, 514-15 (2000) (defendant convicted of violating Family Court order of protection by making prank phone calls to his ex-wife could not later be prosecuted for violating City Court order of protection for making the same calls; Court of Appeals held that the two statutes involved did not each contain an additional element which the other did not, and that the contempt provisions of Family Court Act article 8 were a lesser included offense of PL § 215.51[c]); People [*6]v Arnold, 174 Misc2d 585, 592, 593-94 (Sup Ct, Kings County 1997) (dismissing Penal Law contempt charges against defendants who had previously been found in contempt of Family Court orders of protection, because the prior Family Court proceedings were criminal in nature and because the subsequent prosecution arose out of the same events).

Based on the foregoing, this Court concludes that Boston, Cobb, Street and Crespo cannot be prosecuted under Penal Law § 215.50(2) for the same acts for which Judge Posner has already adjudicated them in contempt under Judiciary Law § 750(A)(1). Accordingly, this Court grants the defendants' motions to dismiss the counts of PL § 215.50(2) from each of the accusatory instruments.

B. The Remaining Charges Are Not Barred By Double Jeopardy

Although the Penal Law Criminal Contempt charges must be dismissed, the remaining charges are not barred by Double Jeopardy. Reckless Endangerment in the Second Degree,^[FN7] Obstructing Governmental Administration in the Second Degree ^[FN8] and Disorderly Conduct ^[FN9] all contain an element that is not an element of Judiciary Law contempt, and Judiciary Law contempt contains elements that are not elements of those statutes.^[FN10] For a defendant to be held in Judiciary Law contempt, the defendant's conduct must have occurred during the court's sitting and in its presence, neither of which is an element of the other offenses, but it need not have created a substantial risk of any type of injury to anyone, as is required to prove Reckless Endangerment in the Second Degree. The defendant need not have intended to obstruct, impair or prevent the administration of law, or attempted to prevent a public servant from performing an official function, as is required to prove Obstructing Governmental Administration in the Second Degree. Finally, the defendant need not have intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance or alarm, as is required to prove Disorderly Conduct.

Thus, neither Reckless Endangerment in the Second Degree, Obstructing Governmental Administration in the Second Degree nor Disorderly Conduct is the "same offense" as Judiciary Law contempt, and the Double Jeopardy Clause does not require dismissal of these Penal Law counts. US v Dixon, 509 US 688, 696 (1993) (double jeopardy bar to multiple prosecutions or punishments [*7]only applies where the two offenses cannot the survive the "same elements" test of Blockburger).^[FN11]

Nor does CPL § 40.20 mandate dismissal of the remaining charges. Under subdivision (2)(b), not only does each offense have an element which is not an element of the other, but the statutes are designed to prevent very different kinds of harms or evils. These Penal Law offenses do not exist to protect the dignity and smooth functioning of the court, as the Judiciary Law and Penal Law contempt provisions do. Rather, they seek to protect the physical safety of others, including members of the public and court officers carrying out their official duties, and the ability of members of the public to carry out their business in peace, undisturbed by intentional or reckless conduct by others.

Accordingly, neither federal nor state Double Jeopardy protections require dismissal of the remaining Penal Law charges, and this Court denies defendants' motions to dismiss them on these grounds.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the offenses charged. CPL §§ 100.15(3); 100.40(1)(b); 70.10. These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. CPL § 100.40(1)(c). An information which fails to satisfy these requirements is jurisdictionally defective. CPL §§ 170.30, 170.35; People v Alejandro, 70 NY2d 133, 136-37 (1987); People v Dumas, 68 NY2d 729, 730 (1986).

To evaluate Boston's claim that the charge of Reckless Endangerment in the Second Degree is facially insufficient, the Court must review the elements of the offense and the factual allegations of the information. Penal Law § 120.20 provides that "a person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." Penal Law § 10.00(10) defines serious physical injury as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." The complaint against Boston, as corroborated by the supporting depositions of Sergeants Marsh and Maguire and Judge Posner, alleges that Boston was seen yelling, fighting and engaging in tumultuous conduct with others in the hallway outside of Parts AP-3, AP-5 and AP-6, even after court officers directed him to stop. It alleges further that Boston continued fighting, yelling and physically struggling with court officers in the crowded hallway for more than five minutes.

While Boston's claim that the complaint "does not even specify what the defendant did" (Wasserman Aff. at ¶ 10) is incorrect, the Court agrees that the facts as alleged are insufficient to establish that he created a substantial risk of serious physical injury to another person. The People do not cite any cases in which allegations such as those here were held sufficient to support a charge of Reckless Endangerment in the Second Degree, and they do not argue that these allegations, if proven, would support a finding that Boston created a substantial risk of serious physical injury to [*8]another. The People argue only that "[t]he words 'physically struggled' constitutes [sic] behavior which creates a substantial risk that physical injury will result" (Peo's Mem at 9). "Physical injury," however, is defined as "impairment of physical condition or substantial pain," PL § 10.00(9), and requires less proof than serious physical injury. Cf. In re Timothy S., 1 AD3d 908, 908-09 (4th Dept 2003) (evidence was sufficient to sustain finding that respondent committed acts which, if committed by adult, would constitute offenses including Reckless Endangerment in the Second Degree, where evidence showed, inter alia, that respondent, together with others, attacked victim outside their school, victim was then hospitalized for six days and victim's eyesight was still impaired 41 days after the attack).

Accordingly, the Court grants Boston's motion to dismiss the charge of Reckless Endangerment in the Second Degree.^[FN12]

Finally, Street seeks dismissal of the entire accusatory instrument in the interest of justice. Dismissal of an information in the interest of justice "is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant . . . would constitute or result in injustice." CPL § 170.40(1); see People v Clayton, 41 AD2d 204 (2d Dept 1973). It is the defendant's burden to demonstrate by a preponderance of the credible evidence that dismissal in the interest of justice is warranted. People v Watson, 182 Misc2d 644, 657 (Crim Ct, Bronx County 1999). Where this burden is not met, the court may summarily deny the motion. Id.; People v Schlessel, 104 AD2d 501, 502 (2d Dept 1984). The Court's discretion to dismiss an accusatory instrument in the interest of justice "is neither absolute nor uncontrolled, and is to be sparingly exercised." People v Kelley, 141 AD2d 764, 765 (2d Dept 1988) (citations omitted). In deciding the motion, the Court "must examine and consider the merits of the defendant's application in light of the factors enumerated in CPL 170.40(1)(a) through (j), and balance the interests of the defendant, the complainant and the community." Watson, 182 Misc2d at 650-51.

Street analyzes only two of the statutory factors, CPL § 170.40(1)(f), the purpose and effect of sentencing him for these alleged offenses, and CPL § 170.40(1)(g), the impact of a dismissal on the safety or welfare of the community, but his arguments are all focused on his claim of a Double Jeopardy violation. This Court finds that it would not constitute or result in an injustice to prosecute him for Obstructing Governmental Administration in the Second Degree and Disorderly Conduct for his behavior in this courthouse on January 22, 2004.

Therefore, Street's motion to dismiss in the interest of justice is denied.

The foregoing constitutes the decision and order of this Court.

Dated:Brooklyn, New York

May 27, 2004

_________________________________

Miriam R. Best

J.C.C.