State of New York                                            MEMORANDUM
Court of Appeals                                        This memorandum is uncorrected and subject to
                                                      revision before publication in the New York Reports.




 No. 7
 The People &c.,
         Respondent,
      v.
 Damon Wheeler,
         Appellant.




 Richard L. Herzfeld, for appellant.
 Andrew R. Kass, for respondent.




 MEMORANDUM:

        The order of the Appellate Term should be reversed and the accusatory instrument

 dismissed.



                                          -1-
                                            -2-                                        No. 7

       Defendant was convicted of obstructing governmental administration in the second

degree for backing his vehicle away from police officers who were attempting to execute

a warrant to search the vehicle. Prior to trial, defendant moved to dismiss the accusatory

instrument, arguing that it was facially insufficient because it failed to put him on notice

of the “official function” with which he was alleged to have interfered (Penal Law §

195.05). Specifically, defendant asserted that the accusatory instrument was defective

because it lacked any reference to the search warrant and alleged in a conclusory fashion

that defendant’s actions were intentionally taken to prevent the police officers from

“effecting a proper vehicle stop.” City Court denied the motion and a jury found defendant

guilty. Upon defendant’s appeal from the judgment, the Appellate Term affirmed (61 Misc

3d 30, 33-34 [App Term 2d Dept, 9th & 10th Jud Dists 2018], lv granted 32 NY3d 1129

[2018]).

       To be facially sufficient, an information must “set forth ‘nonhearsay allegations

which, if true, establish every element of the offense charged and the defendant’s

commission thereof’” (People v Kalin, 12 NY3d 225, 228-229 [2009], quoting People v

Henderson, 92 NY2d 677, 679 [1999]; see CPL 100.40 [1] [c]) and which “supply

defendant with sufficient notice of the charged crime to satisfy the demands of due process

and double jeopardy” (People v Dreyden, 15 NY3d 100, 103 [2010]; see People v Casey,

95 NY2d 354, 360 [2000]). Here, with regard to the “official function” element of the

obstruction charge, the accusatory instrument lacked factual allegations providing

defendant with notice of the official function with which he was charged with interfering—

namely, a police stop of defendant in his vehicle in order to execute a search warrant (Penal

                                            -2-
                                          -3-                                           No. 7

Law § 195.05). Defendant therefore lacked sufficient notice to prepare his defense,

rendering the information jurisdictionally defective (see Casey, 95 NY2d at 360).

         In light of our holding, defendant’s remaining arguments have been rendered

academic.

*    *      *    *    *     *    *    *     *    *     *    *     *    *     *      *      *

Order reversed and accusatory instrument dismissed, in a memorandum. Chief Judge
DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.


Decided February 13, 2020




                                          -3-
