Sometimes Resisting Arrest, pursuant to New York Penal Law 205.30, is the top count or sole “A” misdemeanor crime charged in a criminal court complaint. Whether it is in New York County (Manhattan), Kings County (Brooklyn), Queens County, or Westchester County, an arrest for Resisting Arrest is certainly a charge worthy of concern. After all, NY PL 205.30, like any similarly situated crime, is punishable by a year in jail and a criminal record that will not be expunged. Sadly, just as serious and “real” these arrests may be (and they certainly can be), they are often added to lesser arrests or violations so that the police can hang a more serious crime over the head of the accused. Instead of merely charging you with Disorderly Conduct, when you pull you arm away or raise your hands as the police attempt to cuff you, law enforcement may decide to slap you with this sometimes bogus crime. Alternatively, where there is no legitimate offense to arrest you for, the police may accuse you of Resisting Arrest to validate and otherwise invalid arrest. Today I want to discuss a legal decision out of Kings County (Brooklyn) Criminal Court that centers around those times when Resisting Arrest is not a legally permissible charge. Whether or not this case is applicable to your defense, consult with your New York criminal lawyer.
In People v. Richard DeJesus, 2009-203 K CR, NYLJ 1202540313846, at *1 (App. Tm, 2nd, 11th and 13th NY, Decided January 20, 2012), the defendant was charged with Resisting Arrest (NY PL 205.30), Attempted Petit Larceny (NY PL 110.00/155.25), and Disorderly Conduct (NY PL 240.20). On appeal, the defendant challenged the sufficiency of the accusatory instrument (the criminal court complaint) arguing that because the underlying crimes were not legitimate or sufficiently established, the Resisting Arrest charge must be dismissed. In plain English (not legalese) this means that the defendant challenged the initial document which laid out the charges at arraignment and which were the basis of the trial. An accusatory instrument has to allege “facts” (I use quotes because they are facts according to the police/prosecution) that could establish all the elements of each crime. An accusatory instrument alleging Resisting Arrest pursuant to PL 205.30 must state facts that if true, show that the defendant intentionally prevented or attempted to prevent the police officer form making an authorized arrest. Notice that the arrest must be “authorized,” or in other words it a lawful arrest.