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New York Criminal Law in the News – Wednesday, July 13, 2011


Happy 4th of July!

The blog will be taking a much needed holiday break.  We'll resume blogging on Wednesday!  Happy 4th of July!  (LC)

Court holds that “Central Booking” is not a detention facility

The crime of Promoting Prison Contraband, Penal Law § 205.20(1), a misdemeanor, prohibits the introduction of contraband into a "detention facility."  At issue in People v. Osorio (NYC Crim. Ct. 6/21/2011) (Sciarrino, J.) was whether Central Booking qualifies as a detention facility.  The defendant, who had recently been arrested for an unrelated crime, allegedly handed marijuana to another arrestee in Central Booking. 

A "detention facility" is "any place used for the confinement, pursuant to an order of a court, of a person (a) charged with or convicted of an offense, or…(d) otherwise confined pursuant to an order of a court."  The court held that, since a person in Central Booking is not there pursuant to a court order—he is there because of an arrest—Central Booking is not a detention facility under the meaning of Penal Law Article 205.  The court also looked to the purpose of the statute, "The purpose of Penal Law §205.20 is not to punish those found with contraband once inside a detention facility's doors, but to prevent the introduction of contraband into such facilities in the first place." 

I wonder, though, if the result would have been different if the defendant had been arrested on a bench warrant?  Then, he would be in custody under a court order.  (LC)

Arrest for failing to follow orders?

As we blogged about earlier today, the Rochester Democrat and Chronicle is reporting that an individual was arrested for OGA 2º after she refused police "orders" to return to her house instead of videotaping a traffic stop that was being conducted in front of her residence.  A video of the alleged encounter is on YouTube.

Based on my review of the video, I think this is a classic case of police abusing the OGA charge.  OGA requires some intentional act (or attempted act) of obstruction of a government function by intimidation, physical force, interfering with electronic communications, or by releasing a dangerous animal. 

Contrary to what the officer apparently said on the video, one cannot "go to jail" for not following a police officer's orders.  It is only a crime if failing to do so itself causes an interference of the officer's duties.  The officer, apparently trying to make a case for OGA from the beginning, repeatedly talks about his "safety."  But it is clear from the video that the videographer was quite some distance away from the officers and was not disorderly (in fact, she was silent).  

Apart from the First Amendment issues implicated with the arrest of someone documenting a public event, I think this case highlights a misperception of police that they have the lawful authority to order persons to do whatever they want in the name of safety and that persons who refuse any directive are automatically guilty of OGA.

I predict a speedy dismissal of the accusatory instrument, unless of course there are events that occurred before or after the video recording began that demonstrate some disorderly conduct or conduct that prevented or attempted to prevent the traffic stop.  (LC)

New York Criminal Law in the News – Wednesday, May 4, 2011