Resisting Arrest: The Necessity of an Authorized Arrest & the Right to Object to Unlawful Police Conduct

One of the most frustrating crimes that New York criminal lawyers must defend against is the crime of Resisting Arrest. Although New York Penal Law 205.30 is not as serious a crime as a felony offense, it is frustrating because for every legitimate Resisting Arrest charge that is prosecuted, there are also many violations of NY PL 205.30 that do no not warrant prosecution. For example, if someone is being disorderly or even legally confrontational with the police, a police officer may attempt to arrest that person. Should that person pull his or her arm away while the police try to handcuff him or her, the officer may decide to elevate a “non-case” into a misdemeanor. To be clear, I am in no way insinuating that the police charge this crime wrongfully with regularity, but one would be naive to think that violations of NY PL 205.30 are always based in legal arrests or based upon the spirit of the statute.

What each and every defendant and criminal lawyer must understand about the crime of Resisting Arrest is that a person is guilty of this crime only if he or she intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person. A critical component of any Resisting Arrest arrest (that sounds kind of funny, doesn’t it?!) is that the actions not only be intentional and as a means to prevent a police officer from making an arrest, but the arrest must be an authorized one. If it is not authorized, then the arrest for violating New York Penal Law 205.30 is not valid.

In line with the statute, a recent decision in Brooklyn (Kings County) emphasizes this element. In People v. Terrence Cox, 2012KN040833, NYLJ 1202578452795, at *1 (Crim., KI, Decided November 13, 2012), a court dismissed the charge of Resisting Arrest after it was not supported by probable cause. It was alleged that Cox “yelled, screamed, cursed and swung his arms at a police officer to prevent the officer from placing another individual under arrest, thereby attracting a crowd and creating public alarm.” Based on this conduct, the police arrested Cox and prosecutors charged the defendant with Obstructing Governmental Administration in the Second Degree (NY PL 195.05) and Disorderly Donduct (NY PL 240.20 [1]). Because Cox allegedly flailed his arms and swung them as the police attempted to handcuff him during his arrest, Cox was also arrested for Resisting Arrest. Out of the gate, the Court acknowledged that any Resisting Arrest charge in New York must be based in an authorized arrest whether of that person or a third party. “[A]bsent proof that the arresting officer had a warrant or probable cause to arrest defendant for commission of some offense, a conviction cannot stand.” In Cox, white there is a factual description of the defendant’s conduct as he refused to be cuffed, there was no language establishing that the underlying arrest of the third party was an authorized one.

The reason why the Court of Appeals (New York State’s top court) requires that there be a factual description based in probable cause as to the underlying arrest is because “an individual [has] a legal privilege to avoid an illegal arrest. Accordingly, the People must assert the legality of the arrest the officer was attempting to make or, put differently, must allege that the defendant lacked a privilege to resist that arrest.” See People v. Cherry, 307 NY 308, 310 [1954] [“If force is necessary to prevent an unlawful arrest, then force may be employed.”]). Merely charging the defendant with the crime of Obstructing Governmental Administration is not enough. Where NY PL 195.05 is charged, “the People must allege, and later prove, that the officer’s ‘official function’ was an authorized, or lawful, arrest (see, e.g., People v. Verna, 143 AD2d 94 [2nd Dept 1998]; People v. Greene, 221 AD2d 559 [2nd Dept 1995]; Matter of Anthony B., 201 AD2d 725 [2nd Dept 1994]; People v. Lupinacci 191 AD2d 589 [2nd Dept 1993]; see also Donnino, Practice Commentaries, McKinney’s Cons Law of NY, Penal Law 195.05 [“An ‘official function’ in the context of an arrest requires that the arrest be lawful.’]).” Again, if the People fail to establish the legitimacy of the arrest of a defendant or third party, the crime of Resisting Arrest falls flat.

Whether your arrest in New York for Resisting Arrest is one based in legitimacy or one that is a based in bogus nonsense, at some point prosecutors must meet their burden of proving a case beyond a reasonable doubt. Certainly, the better approach to an illegal arrest may be to fight it later in the courtroom as opposed to the streets, but you will ultimately have the opportunity to exercise your rights and, where appropriate, exonerate yourself.

To educate yourself further about Resisting Arrest, Obstructing Governmental Administration or other crimes found in the New York Penal Law, either review the NewYorkCriminalLawyerBlog.Com or Both sites contain valuable materials ranging from analysis of statutes to reviews of legal court decisions defining them.

A New York criminal defense firm, Saland Law PC’s founding New York criminal lawyers served as prosecutors in the Manhattan DA’s Office prior to establishing the law practice.

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