Sometimes Resisting Arrest, pursuant to New York Penal Law 205.30, is the top count or sole “A” misdemeanor crime charged in a criminal court complaint. Whether it is in New York County (Manhattan), Kings County (Brooklyn), Queens County, or Westchester County, an arrest for Resisting Arrest is certainly a charge worthy of concern. After all, NY PL 205.30, like any similarly situated crime, is punishable by a year in jail and a criminal record that will not be expunged. Sadly, just as serious and “real” these arrests may be (and they certainly can be), they are often added to lesser arrests or violations so that the police can hang a more serious crime over the head of the accused. Instead of merely charging you with Disorderly Conduct, when you pull you arm away or raise your hands as the police attempt to cuff you, law enforcement may decide to slap you with this sometimes bogus crime. Alternatively, where there is no legitimate offense to arrest you for, the police may accuse you of Resisting Arrest to validate and otherwise invalid arrest. Today I want to discuss a legal decision out of Kings County (Brooklyn) Criminal Court that centers around those times when Resisting Arrest is not a legally permissible charge. Whether or not this case is applicable to your defense, consult with your New York criminal lawyer.
In People v. Richard DeJesus, 2009-203 K CR, NYLJ 1202540313846, at *1 (App. Tm, 2nd, 11th and 13th NY, Decided January 20, 2012), the defendant was charged with Resisting Arrest (NY PL 205.30), Attempted Petit Larceny (NY PL 110.00/155.25), and Disorderly Conduct (NY PL 240.20[3]). On appeal, the defendant challenged the sufficiency of the accusatory instrument (the criminal court complaint) arguing that because the underlying crimes were not legitimate or sufficiently established, the Resisting Arrest charge must be dismissed. In plain English (not legalese) this means that the defendant challenged the initial document which laid out the charges at arraignment and which were the basis of the trial. An accusatory instrument has to allege “facts” (I use quotes because they are facts according to the police/prosecution) that could establish all the elements of each crime. An accusatory instrument alleging Resisting Arrest pursuant to PL 205.30 must state facts that if true, show that the defendant intentionally prevented or attempted to prevent the police officer form making an authorized arrest. Notice that the arrest must be “authorized,” or in other words it a lawful arrest.
In his appeal, Richard DeJesus challenged just that– claiming that there were not enough facts laid forth in the accusatory instrument to establish that the officer had probable cause to arrest him for either Attempted Petit Larceny or Disorderly Conduct. Now, a person is guilty of Attempted Petit Larceny when they take an action that comes “within dangerous proximity” to stealing property. For example, if a cop caught you trying to claw open a cash register you would likely be charged with Attempted Larceny (you hadn’t actually taken the money yet, but you performed an act that came “within dangerous proximity” to the criminal end). In DeJesus the accusatory instrument alleged that the officer observed the defendant attempting to open the driver’s side door of a car which did not belong to him and which defendant did not have the owner’s permission to access. The court found that the sole act of attempting to open the car door did not constitute an act “within dangerous proximity” of stealing the car or an unidentified item in the car. Therefore, the accusatory instrument was not sufficient to establish that the arrest for Attempted Petit Larceny was a lawful arrest, so the defendant could not be charged for Resisting that Arrest.
Nevertheless, the DeJesus court still had to analyze the Disorderly Conduct charge to determine if the accusatory instrument laid out enough alleged facts to establish that that arrest was lawful. If it was a lawful arrest for Disorderly Conduct, even if not for Attempted Petit Larceny, the defendant could still be charged with Resisting Arrest. However, if it was not a lawful arrest then the charges would be dropped and the case dismissed. Now, a person is guilty of Disorderly Conduct § 240.20(3) “when with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof” he uses abusive or obscene language or makes obscene gestures, in a public place. Here the accusatory instrument alleged that the defendant yelled at the arresting officer and used obscene language prior to the arrest, but it did not state that “the dispute extended beyond those two individuals.” In short, the court found that the arrest for disorderly conduct was also unlawful, because the obscene language was not in a “public place.”
Since the accusatory instrument did not include allegations establishing, if true, that the arrest for either Attempted Petit Larceny or Disorderly Conduct were legitimate/lawful, the defendant could not be charged with Resisting Arrest. DeJesus shows that courts will be fair to defendants and not blindly allow the police and prosecution to trample someone’s rights just because they did not like that defendant’s attitude or perceived actions. Simply, this courts and other have been clear. If the underlying arrest is not legitimate, then police cannot charge you with resisting arrest.
To better understand the crime of Resisting Arrest, the link above and these blog entries contain a significant amount of valuable information. Further information about Petit Larceny or Disorderly Conduct, is found through the respective links or by reading the blogs and websites below.
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