Opinion
2011-1902 W CR
09-22-2014
The PEOPLE of the State of New York, Respondent, v. Kerri–Ann Fraser AITKENS, Appellant.
Andrea Hirsch, New York City, for appellant. Janet DiFiore, District Attorney, White Plains (Laurie Sapakoff, Steven Bender and Richard Longworth Hecht of counsel), for respondent.
Andrea Hirsch, New York City, for appellant.
Janet DiFiore, District Attorney, White Plains (Laurie Sapakoff, Steven Bender and Richard Longworth Hecht of counsel), for respondent.
PRESENT: IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
Opinion
Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Mark A. Gross, J.), rendered June 23, 2011. The judgment convicted defendant, upon a jury verdict, of resisting arrest. ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of justice, and so much of the accusatory instrument as charged defendant with resisting arrest is dismissed. Defendant was charged, in a single information, with obstructing governmental administration in the second degree (Penal Law § 195.05 ) for allegedly attempting to interfere in the arrest of her sister, resisting arrest (Penal Law § 205.30 ) and disorderly conduct (Penal Law § 240.20 [1 ] ). After a jury trial, defendant was found guilty of resisting arrest and disorderly conduct, and acquitted of obstructing governmental administration in the second degree. The City Court subsequently dismissed so much of the accusatory instrument as charged defendant with disorderly conduct, finding that the accusatory instrument was jurisdictionally defective with respect to that charge. Defendant appeals from the judgment convicting her of resisting arrest. She argues that the accusatory instrument was jurisdictionally defective with respect to that charge as well, that the City Court gave an improper jury charge, and that she received the ineffective assistance of counsel.
Defendant was in the process of being arrested for obstructing governmental administration in the second degree, for having allegedly interfered with the arrest of her sister, when she allegedly resisted her own arrest. She argues that so much of the accusatory instrument as charged her with resisting arrest is jurisdictionally defective because it did not allege facts establishing, if true, every element of the underlying offense of obstructing governmental administration in the second degree which, according to defendant, could only be accomplished by alleging facts that, if true, would establish that her sister's arrest was authorized. This argument is without merit, as an accusatory instrument charging resisting arrest need not allege “facts that would establish, if true, every element of the offense giving rise to the arrest” (People v. Clergeot, 20 Misc.3d 87, 89, 864 N.Y.S.2d 671 [App. Term, 9th & 10th Jud. Dists. 2008] ). It is sufficient that it set forth facts establishing that the arresting officer had probable cause to believe that the defendant had committed an offense in his presence (see CPL 140.10 [1 ] [a]; People v. Alejandro, 70 N.Y.2d 133, 135, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ; see generally Wallace v. City of Albany, 283 A.D.2d 872, 873, 725 N.Y.S.2d 728 [2001] ). Here, the accusatory instrument sufficiently alleged that the arresting officer had probable cause to believe that defendant had attempted to prevent a public servant from performing an “official function,” in this case an arrest, and therefore that she had committed the offense of obstructing governmental administration in the second degree (see Penal Law § 195.05 ). Indeed, even an information directly charging obstructing governmental administration in the second degree, where an arrest is the official function alleged to have been obstructed, need not allege that the arrest was authorized (People v. Cacsere, 185 Misc.2d 92, 93, 712 N.Y.S.2d 298 [App. Term, 9th & 10th Jud. Dists. 2000] ; see also People v. Ballard, 28 Misc.3d 129[A], 2010 N.Y. Slip Op. 51221[U], 2010 WL 2774661 [App. Term, 9th & 10th Jud. Dists. 2010] ). In view of the foregoing, the failure to set forth facts establishing, if true, that the arrest of defendant's sister was authorized did not render jurisdictionally defective so much of the accusatory instrument as charged defendant with resisting her own arrest for obstructing governmental administration.
However, we find that reversal of the judgment of conviction is warranted based upon the City Court's charge to the jury. Immediately following its instruction concerning the elements of the crime of resisting arrest, the court charged the following language from Penal Law § 35.27 : “A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer.” “[A]lthough Penal Law § 35.27 will generally preclude a justification defense to a charge of assault upon a police officer, it has no bearing on the crime of resisting arrest, which requires as an element thereof that there was an authorized arrest” (People v. Rosa, 277 A.D.2d 506, 507, 715 N.Y.S.2d 514 [2000] ). Thus, the inclusion of this instruction directly after charging the elements of resisting arrest “blurred or negated” the elements of the charge of resisting arrest, suggesting that defendant could be found guilty of the crime of resisting arrest, even if the arrest were unauthorized, if she used physical force (id. ; People v. Harewood, 63 A.D.2d 876, 406 N.Y.S.2d 44 [1978] ). This is particularly so here, where there was testimony that defendant had struggled with the arresting officer and the City Court did not provide a definition of “physical force.” While this error was not preserved for appellate review, we reach it in the interest of justice (see People v. Cordes, 71 A.D.3d 912, 913, 897 N.Y.S.2d 479 [2010] ; People v. Cotterell, 7 A.D.3d 807, 779 N.Y.S.2d 500 [2004] ).
Since defendant has served her sentence, as a matter of discretion, we do not order a new trial but dismiss so much of the accusatory instrument as charged defendant with resisting arrest (see People v. Dreyden, 15 N.Y.3d 100, 104, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ; People v. Flynn, 79 N.Y.2d 879, 882, 581 N.Y.S.2d 160, 589 N.E.2d 383 [1992] ; People v. Khan, 31 Misc.3d 130[A], 2011 N.Y. Slip Op. 50580[U], 2011 WL 1441203 [App. Term, 2d, 11th & 13th Jud. Dists. 2011] ).
In light of our determination, we need not reach defendant's remaining contention. Accordingly, the judgment of conviction is reversed and so much of the accusatory instrument as charged defendant with resisting arrest is dismissed.