Appeal from judgments of the Justice Court of the Village of Spring Valley, Rockland County (Christine Theodore, J.), rendered September 20, 2011. The judgments convicted defendant, after a nonjury trial, of obstructing governmental administration in the second degree and resisting arrest, respectively.

ORDERED that the judgment convicting defendant of resisting arrest is reversed, on the law, and the accusatory instrument charging that offense is dismissed; and it is further,

ORDERED that the judgment convicting defendant of obstructing governmental administration in the second degree is affirmed.

The People charged defendant, in separate informations, with obstructing governmental administration in the second degree (Penal Law § 195.05) and resisting arrest (Penal Law § 205.30), respectively, alleging that while police officers were executing an arrest warrant for a third party in defendant's apartment, defendant obstructed the officers' efforts to carry out the search and resisted his arrest for that offense. The defense did not move before trial to controvert the warrant. At the trial, the Justice Court sustained defense counsel's objection to the prosecutor's attempt to admit a copy of the arrest warrant into evidence through the testimony of a police witness who stated that he had reviewed the original of the warrant shortly before its execution and affirmed that the copy was a complete and accurate reproduction of the original. Other police participants in the arrest operation testified that they had been informed by other police officers of the warrant's issuance, and to the basis of the belief that the subject of the warrant resided in defendant's apartment. The arresting officer testified that, during the search, defendant had ignored a directive that he leave a narrow hallway separating the officer leading the search from the other officers on the scene, that defendant had been arrested after physically confronting the officer who had instructed him to remain away from the area being searched, and that defendant had resisted that arrest by struggling with the officers as they had attempted to handcuff him.

At the conclusion of the People's case, defendant moved to dismiss the charges on the ground of evidentiary insufficiency and the Justice Court denied the motion. The motion was not renewed after the defense presented its case, and the court found defendant guilty of both charges. Thereafter, the court denied defendant's motion, pursuant to CPL 330.30, to set aside the verdicts for evidentiary insufficiency.

On appeal, defendant argues that, as the original arrest warrant was not admitted into [*2]evidence, the evidence was legally insufficient to establish that the entry and search was an "official function" (Penal Law § 195.05), which defendant had obstructed, and that he had resisted a lawful arrest for that obstruction. In any event, defendant contends, the convictions were against the weight of the evidence. Defendant further asserts that the officers were required, but failed, to obtain a search warrant to arrest a person in the dwelling of a third party and to have the warrant in their possession when conducting the search. For the reasons that follow, we reverse the judgment convicting defendant of resisting arrest and affirm the judgment convicting him of obstructing governmental administration in the second degree.

"A valid and sufficient accusatory instrument is a nonwaivable prerequisite to a criminal prosecution" (People v Dreyden, 15 NY3d 100, 103 [2010]). An information alleging that a person resisted arrest requires, among other things, a recitation of facts which, if true, establish that the arrest was "authorized" (Penal Law § 205.30), that is, that it was "premised on probable cause" (People v Jensen, 86 NY2d 248, 253 [1995] see e.g. People v Christiansen, 19 Misc 3d 134[A], 2008 NY Slip Op 50693[U], *1 [App Term, 9th & 10th Jud Dists 2008] People v Lucas, 15 Misc 3d 139[A], 2007 NY Slip Op 50943[U] [App Term, 9th & 10th Jud Dists 2007]). As these allegations must be contained within the four corners of the accusatory instrument charging resisting arrest, and any supporting deposition accompanying it (People v Thomas, 4 NY3d 143, 146 [2005]), we may not consider the facts set forth in the information alleging obstruction of governmental administration in the second degree, the arrest for which defendant is alleged to have resisted, to supplement the allegations contained in the information charging resisting arrest (see e.g. People v Tucker, 32 Misc 3d 135[A], 2011 NY Slip Op 51467[U], *1 [App Term, 9th & 10th Jud Dists 2011] People v Davis, 31 Misc 3d 142[A], 2011 NY Slip Op 50844[U] [App Term, 9th & 10th Jud Dists 2011]). Here, the accusatory instrument alleging resisting arrest stated merely that defendant "did intentionally attempt to prevent his authorized and lawful arrest" by committing certain acts. The instrument lacks reference even to the offense for which defendant was arrested, much less facts "from which it could be rationally inferred that the officer had probable cause to arrest defendant" (People v DeJesus, 34 Misc 3d 141[A], 2012 NY Slip Op 50083[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2012]). Accordingly, the conviction of resisting arrest is reversed and the accusatory instrument charging that offense is dismissed (see People v Klein, ___ Misc 3d ___ , ____ NY Slip Op ______ [Appeal No. 2012-1424 RO CR], decided herewith).

As defendant failed to renew his motion to dismiss for evidentiary insufficiency after presenting his case, his claim that the evidence was legally insufficient to support the conviction of obstructing governmental administration in the second degree is not preserved for appellate review (CPL 470.05 [2] People v Hines, 97 NY2d 56, 61 [2001] People v Martinez, 39 Misc 3d 149[A], 2013 NY Slip Op 50947[U] [App Term, 9th & 10th Jud Dists 2013]). Defendant's postverdict motion to dismiss for evidentiary insufficiency pursuant to CPL 330.30 did not satisfy the Hines requirement because that motion may be based only on a ground that would require reversal by an appellate court as a matter of law (see CPL 330.30 [1]). An unpreserved claim that the evidence is legally insufficient to support a conviction is not such a ground (People v Everson, 100 NY2d 609, 610 [2003] People v Sudler, 75 AD3d 901, 904 [2010] People v Harrington, 67 AD3d 1449, 1450 [2009]).

In any event, the proof was legally sufficient to establish defendant's guilt of obstructing governmental administration in the second degree. A conviction of that charge requires proof beyond a reasonable doubt that the defendant obstructed an "official function authorized by law" (People v Small, 109 AD3d 843, 843 [2013] see People v Lupinacci, 191 AD2d 589 [1993] People v Stewart, 32 Misc 3d 133[A], 2011 NY Slip Op 51445[U], *3 [App Term, 2d, 11th & 13th Jud Dists 2011]). As the arrest warrant was issued by a court of competent jurisdiction following the indictment of the subject of the warrant, it is presumed to be based on probable cause (CPL 120.10 [1] 120.20 [1] [a] Washington-Herrera v Town of Greenburgh, 101 AD3d 986, 988 [2012]). The execution of such a warrant is an act of governmental administration (People v Coffaro, 52 NY2d 932, 934 [1981] People v Michael, 39 Misc 3d 138[A], 2012 NY [*3]Slip Op 52474[U], *2 [App Term, 9th & 10th Jud Dists 2012]). An officer to whom an arrest warrant's execution is delegated is "under a duty to comply with [it]" and has no obligation "to institute an inquiry into its alleged invalidity" (People v Briggs, 19 NY2d 37, 43 [1966]). Further, as a general rule, "a police officer may rely upon information communicated to him by another police officer . . . that an individual is the subject named in a[n arrest] warrant and should be taken into custody in execution of the warrant" (People v Jennings, 54 NY2d 518, 522 [1981]), notwithstanding that the officer may have no personal knowledge of the warrant's existence and whether it was based on reasonable cause (see CPL 120.60). An arrest warrant may be executed without actual possession of the warrant (CPL 120.80 [2] People v Ebron, 275 AD2d 490, 491 [2000]).

Absent a challenge to the arrest warrant's validity, "the presumption of probable cause remain[s]," and, at a suppression hearing, "the People [are] not required to make a further evidentiary showing by producing the arrest warrant" (People v Boone, 269 AD2d 459, 459 [2000] see also People v Jenkins, 47 NY2d 722, 724 [1979] People v Felton, 145 AD2d 969, 970 [1988] People v Szczpanik, 55 AD2d 702, 702-703 [1976] cf. People v Lopez, 206 AD2d 894 [1994]). Although the People's burden of production at a suppression hearing is less than what is required to establish proof beyond a reasonable doubt at a trial, we are satisfied that where there has been no challenge to the existence or propriety of an arrest warrant, trial testimony may suffice to establish, beyond a reasonable doubt, that a valid warrant for a subject's arrest existed.

Here, a police witness testified at trial, credibly according to the Justice Court, that he had reviewed the original of the arrest warrant before the entry and search of defendant's apartment, and he identified a copy of that warrant as identical to the original. Other prosecution witnesses testified as to their knowledge of the warrant, the subject of the warrant, and the basis of their belief that the subject resided in defendant's apartment. Under the circumstances, that proof was legally sufficient to establish the existence and lawfulness of the arrest warrant (e.g. Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639, 643 [1994] Kliamovich v Kliamovich, 85 AD3d 867, 869 [2011] Rotanelli v Longo, 210 AD2d 392 [1994] People v Szczpanik, 55 AD2d at 703; United States v Hernandez-Fundora, 58 F3d 802, 808-809 [2d Cir 1995] United States v Jones, 958 F2d 520, 521 [2d Cir 1992]).
The official directive that defendant refrain from interfering with the search for the subject of an arrest warrant represented a lawful exercise of governmental administration (People v Harrell, 208 AD2d 647 [1994]). While probable cause for an arrest for obstructing governmental administration requires that the interference be "in part at least, physical in nature" (People v Case, 42 NY2d 98, 102 [1977]), that criterion may be established by proof that the defendant engaged in "inappropriate and disruptive conduct at the scene of the performance of [the] official function" (People v Romeo, 9 AD3d 744, 745 [2004] [internal quotation marks and citation omitted]) "even if there is no physical force involved" (Willinger v City of New Rochelle, 212 AD2d 526, 527 [1995]). The testimony that defendant followed the officer leading the search down a narrow hallway, thereby obstructing the access of the remaining officers to that officer, and that defendant refused to obey a directive that he not interfere with the search and repeatedly "shoved" the officer who issued the directive, established defendant's "inappropriate and disruptive conduct" with respect to an official function.

Defendant's additional argument, that the police were obligated to obtain a search warrant if they were to search defendant's dwelling (see CPL 690.05 [2] [b]), is without merit. A search warrant for a premises that is the dwelling of a third party is not required when the premises to be searched is reasonably believed to also be the dwelling of the person who is the subject of an arrest warrant (see e.g. People v Colletta, 289 AD2d 1032 [2001] People v Murray, 267 AD2d 492, 494 [1999]).

Finally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5] People v Danielson, 9 NY3d 342, 349 [2007]), and according the appropriate deference to the trier of fact's opportunity to view the witnesses, hear their [*4]testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006] People v Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the conviction of obstructing governmental administration in the second degree was not against the weight of the evidence.

Accordingly, the judgment convicting defendant of resisting arrest is reversed and the accusatory instrument charging that offense is dismissed. The judgment convicting defendant of obstructing governmental administration in the second degree is affirmed.

Tolbert, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: February 06, 2014