Knapp, Kew Gardens, NY (Randall Unger of counsel), for
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and
Jonathan K. Yi of counsel), for respondent.
RANDALL T. ENG, P.J., SHERI S. ROMAN, ROBERT J. MILLER, LINDA
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Queens
County (Aloise, J.), rendered November 30, 2016, convicting
him of resisting arrest, upon a jury verdict, and imposing
sentence. The appeal brings up for review the denial, after a
hearing (Blumenfeld, J.), of that branch of the
defendant's omnibus motion which was to suppress physical
evidence. By decision and order on motion dated December 20,
2016, this Court, inter alia, granted the defendant's
motion to stay execution of the judgment pending the hearing
and determination of the appeal.
that the judgment is reversed, as a matter of discretion in
the interest of justice, count seven of the indictment
charging resisting arrest is dismissed, and the matter is
remitted to the Supreme Court, Queens County, for further
proceedings consistent with CPL 160.50.
night of June 24, 2013, police officers received a radio call
for an incident involving a "man with a firearm."
The radio call did not provide a description of the suspect.
When the officers arrived at the alleged location of the
incident, the complainant stated that while he was walking
home from a store where he worked, he was "approached by
a male black in a white BMW" who "pointed a gun out
the window at him." The complainant led the officers
down a block, pointed to two black males standing in the
driveway of a house, and stated "that's them."
The complainant did not identify which of the two men had
threatened him with the firearm. The two men were later
identified as the defendant and Anthony Legister. Officers
Evan Marro and Dominic Scicutella testified at trial that the
defendant and Legister had been standing near a silver
Mercedes that was parked in the driveway, and that there was
a white BMW parked in the street perpendicular to the
driveway such that it blocked the Mercedes in the driveway.
Officer Marro testified that he saw Legister toss a silver
metal object into the trunk of the Mercedes and then close
the trunk. The officers approached the defendant and Legister
and frisked them. After the defendant refused to provide
identification, and Officer Marro removed the defendant's
passport from his back pocket, the defendant fled on foot.
The officers were unable to apprehend him at that time. Upon
a search of the Mercedes, the officers found two firearms and
marijuana in the trunk. The defendant was arrested
approximately six months later.
trial, the complainant was unable to identify the defendant
as the individual who had pointed the firearm at him.
However, the complainant testified that earlier in the day on
June 24, 2013, he had gotten into a verbal altercation with a
taxi driver at the store where he worked because the taxi
driver was attempting to solicit business there. He testified
that the taxi driver and the male in the BMW who pointed the
firearm at him were the individuals in the driveway to whom
he directed the police officers. He further testified that
the male who fled from the officers had pointed the firearm
defendant was convicted of resisting arrest. He was acquitted
of four counts of criminal possession of a weapon in the
second degree, two counts of criminal possession of a weapon
in the third degree, and unlawful possession of marijuana.
person is guilty of resisting arrest when he or she
intentionally prevents or attempts to prevent a police
officer from effectuating an authorized arrest of himself or
herself or another person (see Penal Law §
205.30). "A key element of resisting arrest is the
existence of an authorized arrest, including a finding that
the arrest was premised on probable cause" (People v
Jensen, 86 N.Y.2d 248, 253; see People v Finch,
23 N.Y.3d 408, 416; People v Kevin W., 91 A.D.3d
676, 678, affd 22 N.Y.3d 287). Although the
defendant's contention that the prosecution failed to
present legally sufficient evidence of an authorized arrest
is unpreserved for appellate review (see People v
Mitchell, 148 A.D.3d 730, 731), we reach it in the
exercise of our interest of justice jurisdiction
(see CPL 470.15[c]; People v James, 135
A.D.3d 787, 788). Viewing the evidence in the light most
favorable to the People (see People v Contes, 60
N.Y.2d 620), we agree with the defendant that the evidence
was not legally sufficient to establish the element of
authorized arrest because, as a matter of law, the evidence
failed to establish that the police had probable cause to
arrest the defendant. Generally, information provided by an
identified citizen accusing another individual of a specific
crime is legally sufficient to provide the police with
probable cause to arrest (see People v Sahadeo, 140
A.D.3d 1093; People v Nealy, 32 A.D.3d 400, 401;
People v Griffin, 15 A.D.3d 502). However, at the
time that the complainant pointed to the defendant and
Legister and stated "that's them, " the police
officers had only been informed that one individual pointed a
firearm at the complainant. Therefore, under the
circumstances presented here, the officers could not have
concluded that it was more probable than not that the
defendant, and not Legister, had been driving the white BMW
and pointed a firearm at the complainant. Accordingly, the
evidence was legally insufficient to establish the
defendant's guilt of the crime of resisting arrest.
light of our determination, we need not reach the