Opinion
239 A.D.2d 246 657 N.Y.S.2d 184 The PEOPLE of the State of New York, Respondent, v. Dave THOMAS, Defendant-Appellant. Supreme Court of New York, First Department May 15, 1997.
Daniel R. Wanderman, New York City, for Respondent.
Alan F. Katz, Garden City, for Defendant-Appellant.
Before MILONAS, J.P., and NARDELLI, WILLIAMS and ANDRIAS, JJ.
MEMORANDUM DECISION.
Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered April 25, 1994, convicting defendant, after a jury trial, of resisting arrest, and sentencing him to a prison term of 1 year, unanimously affirmed.
Defendant's challenges to the sufficiency of the evidence are unpreserved for appellate review because he failed to move to dismiss the resisting arrest charge on those specific grounds (People v. Gray, 86 N.Y.2d 10, 19-20, 629 N.Y.S.2d 173, 652 N.E.2d 919), and because such issues may not be preserved by means of a motion to set aside the verdict (People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233). Were we to consider these claims in the interest of justice, we would find them to be without merit. Defendant was properly convicted of resisting arrest notwithstanding that he was acquitted of all other charges (People v. Martin, 222 A.D.2d 528, 635 N.Y.S.2d 246, lv denied 88 N.Y.2d 850, 644 N.Y.S.2d 696, 667 N.E.2d 346; People v. Mayi, 198 A.D.2d 444, 605 N.Y.S.2d 909) and was never charged with the particular offenses for which he was being arrested at the time he resisted arrest (Matter of James T., 189 A.D.2d 580, 592 N.Y.S.2d 36). There was ample evidence that defendant resisted an authorized arrest. The first officer present, who was clearly in possession of probable cause, was not required to communicate anything to his fellow officers beyond a simple direction to arrest since "an arresting officer is deemed to act with probable cause when making an arrest at the direction of another law enforcement officer who has the requisite probable cause" (People v. Rosario, 78 N.Y.2d 583, 588, 578 N.Y.S.2d 454, 585 N.E.2d 766, cert denied 502 U.S. 1109, 112 S.Ct. 1210, 117 L.Ed.2d 448).