The opinion of the court was delivered by: Ellen M. Yacknin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In separate accusatory instruments, defendant Timothy C. Carroll is charged with the violation of harassment in the second degree and the misdemeanor of resisting arrest. The resisting arrest accusatory instrument accuses defendant of resisting a police officer's attempt to take him into custody following a citizen's arrest of defendant for the non-criminal violation.
As drafted, the resisting arrest charge raises critical issues regarding the complex relationships between the laws governing police arrests, citizens' arrests, and the crime of resisting arrest. Whether the People can prosecute defendant for resisting arrest under the circumstances here depends upon an analysis of these relationships.
On May 19, 2008, defendant was arraigned on the charges of harassment in the second degree and resisting arrest. The harassment accusatory instrument, signed by the putative victim, alleges that defendant struck him in the eye with his closed fist. The resisting arrest accusatory instrument, signed by a police officer, alleged that defendant kicked and pushed the officer when the officer attempted to handcuff defendant after informing him that he was under arrest for harassment in the second degree.
On July 10, 2008, the Court dismissed the resisting arrest charge without prejudice because as drafted, the accusatory instrument was legally defective. Specifically, the Court ruled that the accusatory instrument failed to allege that defendant's warrantless arrest was legally authorized.*fn1 The Court then scheduled a September 18, 2008 bench trial on the harassment charge.
On the trial date, however, the People filed a second accusatory instrument charging defendant with resisting arrest. Unlike the first document, the new accusatory instrument asserts that the alleged harassment victim had made a citizen's arrest of defendant.
Because the new resisting arrest charge was transactional to the harassment charge, the bench trial on the latter charge did not proceed. Instead, the Court arraigned defendant on the refiled resisting arrest charge and gave defendant an opportunity to file motions.
Defendant filed an omnibus motion on October 10, 2008, and the People responded on October 15, 2008. On that date, the Court advised counsel of its concerns regarding the sufficiency of the second resisting arrest charge. As a result, the Court gave both parties an opportunity to address the Court's concerns if they wished, and granted defendant's request for a probable cause hearing. The Court scheduled additional argument and the probable cause hearing for November 21, 2008.
I. Upon His Arrest By A Citizen for a Non-criminal Violation that Occurred Outside the Police Officer's Presence, Defendant Cannot Lawfully Be Prosecuted For Resisting Arrest under NY Penal Law §205.30
Under NY Penal Law §205.30, a defendant can lawfully be prosecuted for resisting arrest only if the underlying arrest was "authorized." Stated differently, that the underlying arrest was authorized is an essential element of the crime of resisting arrest. See People v. Perez, 47 AD3d 1192, 1193-94 (4th Dep't 2008). For that reason, legally sufficient facts demonstrating that the underlying arrest was authorized must be pleaded properly in an accusatory instrument charging a defendant with the misdemeanor of resisting arrest. See People v. Alejandro, 70 NY2d 133, 135 (1987); People v. Peacock, 68 NY2d 675, 677 (1986).
To rectify the defect inherent in the previously dismissed accusatory instrument, namely, the failure to allege facts demonstrating that the police officer was authorized to arrest defendant without a warrant, the new accusatory instrument alleges that the putative victim, not the police officer, arrested defendant. The citizen's arrest assertion is apparently intended to imply that the officer was authorized to take physical custody of defendant because the alleged victim, not the officer, arrested defendant. Therefore, according to the People, the resisting arrest charge is properly pleaded and defendant's prosecution for resisting arrest can proceed.
Whether the People are correct depends upon the answers to the following legal questions:
(1) Where a defendant has been arrested by a citizen for a non-criminal violation committed outside a police officer's presence, is the officer legally authorized to take ...