It is fairly common in the courts throughout New York City (Manhattan, Brooklyn, Queens and the Bronx) for criminal defense attorneys to represent clients charged with Resisting Arrest, pursuant to NY Penal Law 205.30. While it certainly can be a legitimate charge, very often the police will add this charge on top of the original offense if a defendant merely “resists” by backing away, swinging his or her arms up and not complying with an officers demands. Do not be mistaken that the law in NY requires a fist fight or shoving to satisfy the elements of Resisting Arrest. No physical violence or injury is necessary.
According to Penal Law 205.30:
A person is guilty of Resisting Arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.
As addressed above, this resistance need not be violent. In fact, as long as one intends to prevent an officer from making an authorized arrest by engaging in particular conduct, resisting arrest may be charged. See People v. Blandford, 37 A.D.2d 1003 (3 Dept. 1971). Lifting an individual from a seated position who refused to be placed under arrest and carrying that person to a patrol car has been found to be sufficient to establish the crime of Resisting Arrest even though the defendant did not behave in a violent or aggressive manner. See People v. Bauer, 161 Misc.2d 58 (Watertown Cty Ct. 1994).
Another important factor one must consider when defending against the charge of Resisting Arrest is that the underlying arrest must be an “authorized arrest.” In other words, the arrest must be based on probable cause either by observations by the officer, for example, or in connection to a warrant. People v. Jensen, 86 N.Y.2d 248 (1995).
Regardless of the set of circumstances, if you are confronted by the police it is usually, if not always, in your best interest to be orderly and “compliant.” This does not mean you should merely let the police take advantage of a particular situation. At the same time, you do not want to escalate a potentially dangerous situation. In the event you are wrongly arrested or charged with certain crimes, your criminal defense attorney cannot only make the applicable motions to challenge the legality and sufficiency of the arrest and charged offenses, but he or she can explain to you the available civil remedies as well.