PRESENT:: WESTON, J.P., GOLIA and RIOS, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Daniel Chun, J.), rendered November 11, 2008. The judgment convicted defendant, upon his plea of guilty, of resisting arrest.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
Defendant was charged, in a single accusatory instrument, with resisting arrest (Penal Law § 205.30), attempted petit larceny (Penal Law §§ 110.00, 155.25) and disorderly conduct (Penal Law § 240.20 ). After his oral application to dismiss the accusatory instrument as facially insufficient was denied, defendant pleaded guilty to resisting arrest in satisfaction of all the charges. On appeal, defendant argues that the accusatory instrument was facially insufficient insofar as it charged him with resisting arrest because it failed to allege facts that would establish, if true, that the arrest had been authorized.
Although the accusatory instrument in this case was a misdemeanor complaint, as conceded by the People, it must be evaluated under the standards that apply to an information (see CPL 100.40 ) because defendant did not waive his right to be prosecuted by misdemeanor information (see People v Kalin, 12 N.Y.3d 225 ).
An information alleging resisting arrest (Penal Law § 205.30) must, in the factual part, set forth allegations sufficient to establish, if true, that defendant's arrest was lawful (People v Jensen, 86 N.Y.2d 248, 253 ; see also People v Lucas, 15 Misc.3d 139 [A], 2007 NY Slip Op 50943[U] [App Term, 9th & 10th Jud Dists 2007]). In this case, the information needed to allege sufficient facts from which it could be rationally inferred that the officer had probable cause to arrest defendant for either attempted petit larceny or disorderly conduct (see People v Jensen, 86 N.Y.2d 248, 253 ).
With respect to the arrest for attempted petit larceny, the accusatory instrument alleges that defendant was observed 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. "A person is guilty of petit larceny when he steals property" (Penal Law § 155.25). To constitute an attempt, an act must "carry the project forward within dangerous proximity to the criminal end to be attained" (People v Bracey, 41 N.Y.2d 296, 300 , quoting People v Werblow, 241 N.Y. 55 ). We find that it is not rational to infer, solely from the act of attempting to open the car door, that defendant had come within dangerous proximity of stealing either the car or some unidentified item in the car. Consequently, the accusatory instrument failed to allege facts from which it could be inferred that the arrest for attempted petit larceny was authorized (see Jensen, 86 N.Y.2d 248).
With respect to the arrest for disorderly conduct, the accusatory instrument alleges that defendant yelled at the arresting officer and used obscene language prior to the arrest. However, it did not allege that the dispute extended beyond those two individuals. Consequently, the accusatory instrument failed to allege facts from which it could be inferred that the arrest for disorderly conduct was authorized (see People v Weaver, 16 N.Y.3d 123, 128 ; see also People v Konieczny, 2 N.Y.3d 569, 576 ).
Since the accusatory instrument did not include allegations establishing, if true, the necessary element of resisting arrest that the underlying arrest was authorized, and jurisdictional defects in an information are nonwaivable (see People v Casey, 95 N.Y.2d 354 ), the judgment of conviction is reversed and the accusatory instrument is dismissed as fatally defective (see People v Alejandro, 70 N.Y.2d 133 ).
Weston, J.P., and Rios, J., concur.
Golia, J., dissents in a separate memorandum.
Golia, J., dissents and votes to affirm the judgment of conviction in the following memorandum:
To effectuate a legal arrest, a police officer need only have probable cause to believe that the suspect committed a crime (People v Guo Fa Liu, 271 A.D.2d 695 ). "Probable cause for a warrantless arrest does not require proof sufficient to support a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed" (People v Cooper, 38 A.D.3d 678, 679 ) [internal quotation marks omitted]). Furthermore, "in a probable cause analysis, the emphasis should not be narrowly focused on... any... single factor but on an evaluation of the totality of circumstances, which takes into account the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents" (People v Williams, 69 A.D.3d 663, 664 ).
The totality of the circumstances in the case at bar include (1) defendant's attempt to open the driver's side car door, (2) defendant's confrontational and defensive responses to the arresting officer's inquiries concerning his observations, (3) defendant's refusal to cooperate with the officer, (4) defendant's intention to leave the scene on his bicycle upon the officer's approach, and (5) the car dealership owner's statement that defendant did not have permission to use the vehicle. When examining the totality of the ...