Resisting Arrest in NY: Conviction if Underlying Crime Dismissed?

As a criminal defense attorney and former prosecutor who was an original member of the Identity Theft Unit, I have seen people charged with Resisting Arrest, Penal Law 205.30, along with underlying crimes ranging from Assault, DWI and Grand Larceny to Robbery, Trespassing, and Marijuana Possession. As the cases proceeded and went to trial, sometimes those underlying charges would not stick and the only remaining offense was the Resisting Arrest. An interesting issue that faced many defense attorneys and prosecutors was whether a person can be convicted of Resisting Arrest in New York and not the underlying charge. Simply put, the answer is yes.

Before dissecting this issue, the first thing to do is to define the crime of Resisting Arrest. Pursuant to the Penal Law, 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.”

For our purposes of determining whether a conviction for Resisting Arrest may be legal despite no conviction for the underlying crime, the important element is “authorized arrest.” Where there is an “authorized arrest” a conviction for Resting Arrest can be had where there is no conviction on the underlying charges. In other words, if there is probable cause to arrest a person for the crime of Assault and the person resists and is therefore charged with Resisting Arrest, the Resisting Arrest charge may be able to stand alone as long as there was probable cause to initially make the arrest. See People v. Volition; See also People v. Laltoo.

Despite the fact that a Resting Arrest charge can stand alone, each case must be analyzed and examined on its own set of facts. Merely because it is legally permissible to stand alone does not mean in each case it should. A criminal defense attorney can assist you in not only understanding the “rules” of Resisting Arrest, but when it may be challenged with the intention of having the charged dismissed.

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