Criminal Court of the City of New York, Bronx County
October 15, 2013
The People of the State of New York,
Shadale Bowie, Defendant
For the People, Robert T. Johnson, District Attorney, Bronx County, by Melissa Weiner, Esq., Assistant District Attorney.
For the Defendant, Steven Banks, Esq., Legal Aid Society, by Jeremy Robert Davidson, Esq.
John H. Wilson, JCC
By a superceding information dated August 21, 2013, Defendant is charged with one count of Resisting Arrest (PL Sec. 205.30), a Class A misdemeanor. 
By omnibus motion dated July 15, 2013, Defendant seeks suppression of all statements made to law enforcement personnel, as well as evidence of any prior bad acts or immoral conduct.
By a supplemental motion dated July 23, 2013, Defendant also seeks dismissal of the sole charge on the docket, asserting that the People's complaint is facially insufficient.
The Court has reviewed the Court file, Defendant's motions, and the People's Response dated August 9, 2013.
For the reasons stated below, the motion to dismiss is denied.
The motion for a pre-trial hearing is granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not statements were taken in violation of Defendant's rights under the United States and New York Constitutions.
Whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.
Pursuant to the superceding information, on or about June 16, 2013 at approximately 2:06 AM, the Defendant was observed by Police Officer Michael Masci (deponent) at the intersection of Quimby Avenue and Olmstead Avenue, Bronx, New York to be "riding a bicycle down a public sidewalk around a group of people." See, superceding information dated August 21, 2013, p 1.
When the officer "asked defendant for identification in order to issue a summons for the above-mentioned conduct, defendant was unable to produce any form of identification." See, superceding information dated August 21, 2013, p 1.
The officer then attempted to arrest defendant for the actions described above. "(D)efendant flailed his arms, kicked his legs, and pushed his body back and forth, refusing to be handcuffed." See, superceding information dated August 21, 2013, p 2.
Under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652 (1986).
Applying these principles to the instant matter, the factual allegations contained in the misdemeanor complaint before this Court are sufficient.
Under PL Sec. 205. 30, "a person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer...from effecting an authorized arrest of himself."
Pursuant to the superceding information, Officer Masci observed the Defendant riding a bicycle on a public sidewalk. The Defendant did not have identification sufficient to allow the officer to issue Defendant a summons. As the officer attempted to take defendant into custody, "defendant flailed his arms, kicked his legs, and pushed his body back and forth, refusing to be handcuffed." See, superceding information dated August 21, 2013, p 2.
These allegations are sufficient to sustain the charge of Resisting Arrest. See, People v. Yarborough, 19 Misc.3d 520, 526, 852 N.Y.S.2d 751 (S Ct, Bronx Cty, 2008) (Information sufficient which alleged that defendant "flailed his hands and twisted his body" in effort to avoid being handcuffed.)
Defendant asserts that the Resisting Arrest charge must be dismissed "because the information fails to establish that the arrest was authorized." See, Defendant's Memorandum of Law attached to his supplemental motion dated July 23, 2013, p 7.
It is true that "an unauthorized arrest will bar a charge of Penal Law Sec. 205.30." See, People v. Mohamadou, 182 Misc.2d 77, 79, 698 N.Y.S.2d 445 (Crim Ct, NY Cty, 1999). However, "if the police officer had reasonable cause to believe that an offense was being committed at the time of the original confrontation then he has a right to arrest." 182 Misc.2d at 81. Thus, "a resisting arrest charge is valid even if the defendant was acquitted of the underlying offense provided the arrest is authorized." 182 Misc.2d at 81, citing People v. Williams, 25 N.Y.2d 86, 302 N.Y.S.2d 780 (1969). See, also, People v. Martin, 222 A.D.2d 528, 635 N.Y.S.2d 246 (2d Dept, 1995); Matter of Christopher B., 122 Misc.2d 377, 471 N.Y.S.2d 228 (Fam. Ct, NY Cty, 1984).
In fact, a defendant can be convicted of Resisting Arrest even if he "was never charged with the particular offenses for which he was being arrested at the time he resisted arrest." See, People v. Thomas, 239 A.D.2d 246, 247, 657 N.Y.S.2d 184 (1st Dept, 1997), citing, Matter of James T., 189 A.D.2d 580, 592 N.Y.S.2d 36.
The superceding information states that the Defendant was riding a bicycle on a sidewalk. This would constitute a violation of AC Sec. 19-176(b), which states "No person shall ride a bicycle upon any sidewalk unless permitted by an official sign." The violation of this subsection is a civil penalty "of not more than one hundred dollars."
The superceding information indicates that the officer intended to issue a summons to the Defendant for this violation, however, Defendant did not have any identification. At that point, the officer attempted to take the Defendant into custody, presumably so he might ascertain Defendant's identity at the police precinct.
"(A) police officer's authority to effect a custodial arrest for a violation...remains valid even where the officer has the option of issuing a summons instead." See, People v. Rodriguez, 84 A.D.3d 500, 501, 922 N.Y.S.2d 384 (1st Dept, 2011), citing People v. Lewis, 50 A.D.3d 595, 857 N.Y.S.2d 88 (1st Dept, 2008), lv app den, 11 N.Y.3d 790, 866 N.Y.S.2d 616 (2008). See, also, People v. Hagood, 93 A.D.3d 533, 534, 940 N.Y.S.2d 261 (1st Dept, 2012).
Therefore, since the detention of the Defendant was authorized, the Resisting Arrest charge is facially sufficient. Defendant's motion to dismiss is denied.
OTHER RELIEF REQUESTED
Defendant has moved for suppression of any statements he allegedly made to law enforcement personnel. This motion is granted to the extent of ordering a pre-trial hearing at which the issue of whether or not Defendant's statements are admissible, and whether or not there was probable cause for the Defendant's arrest will be considered.
Defendant seeks suppression of any prior bad acts or immoral conduct. A hearing to determine whether or not any evidence of prior bad acts or immoral conduct by the Defendants will be conducted by the trial judge, prior to any trial of this matter.
All other arguments and requests for any additional hearings and relief that have been advanced by the Defendant has been reviewed and rejected by this Court as being not applicable, or without merit.
This shall constitute the opinion, decision, and order of the Court.