Christopher B, Matter of
| Decision Date | 11 January 1984 |
| Citation | 471 N.Y.S.2d 228,122 Misc.2d 377 |
| Parties | In the Matter of CHRISTOPHER B A Person Alleged to be a Juvenile Delinquent, Respondent. |
| Court | New York Family Court |
Respondent is charged with resisting arrest (Penal Law § 205.30), an act which if committed by an adult would constitute a Class A misdemeanor. The predicate offense to which the police officer originally responded was disorderly conduct (Penal Law, § 240.20) a violation not rising to the level of a crime, and hence an act for which respondent as a juvenile cannot be found to be a juvenile delinquent (Matter of David W., 28 N.Y.2d 589, 319 N.Y.S.2d 845, 268 N.E.2d 642).
In support of a trial motion for dismissal, it is argued that a charge of resisting arrest can only be sustained when probable cause to make an arrest for a predicate offense exists (People v. Stevenson, 31 N.Y.2d 108, 335 N.Y.S.2d 52, 286 N.E.2d 445); that, inasmuch as juvenile delinquency is classically defined as an act which would be a crime if committed by an adult, (viz., felony or misdemeanor, but not a violation) there being no underlying actionable conduct upon which respondent may be found to be criminally liable, there is accordingly no predicate upon which the resisting arrest charge may be sustained.
Respondent cites the decision of our colleague, the Hon. Aileen Haas Schwartz, in Matter of Clive W., 109 Misc.2d 788, 441 N.Y.S.2d 188, as authority. We have read the erudite opinion of our colleague and have afforded it great weight and respectful consideration. Nevertheless, we are impelled to disagree and accordingly hold to the contrary.
The crime of resisting arrest is defined by Penal Law, § 205.30 as follows:
"A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a * * * peace officer from effecting an authorized arrest of himself or another person."
In Matter of Clive W., supra, our colleague cites People v. Stevenson, 31 N.Y.2d 108, 335 N.Y.S.2d 52, 286 N.E.2d 445, for the proposition that in order to be an authorized arrest within the meaning of this statute, the prosecution must prove beyond a reasonable doubt that compliance has been had "with the rules of arrest governed by constitutional, common law and statutory standards" (supra at p. 790, 441 N.Y.S.2d 188).
In its very introductory remarks, Clive W., frames the issue as follows "Does Penal Law § 35.15, 'Justification use of physical force in defense of a person,' comprehend physical force against an arresting officer? ( Supra, p. 189, 335 N.Y.S.2d 52, 286 N.E.2d 445).
While we agree that justification in resisting arrest may indeed be an issue under proper circumstances, we respectfully dissent, in view of the existence of Penal Law § 35.27 and its application to the crime of resisting arrest by appellate tribunals, to Clive W's., application of the more general and, at best, tangentially relevant provisions of § 35.15 to the crime at issue.
Section 35.27 provides as follows:
In People v. Simms, 36 A.D.2d 23, 319 N.Y.S.2d 144, the Appellate Division, Fourth Department, applying this statute to a situation where conviction for the crime of resisting arrest followed dismissal of the underlying predicate offense of carrying an open can of alcoholic substance on a public street, quoted with approval the Commentary on that section in McKinney's Consolidated Laws, Book 39 as follows:
"The rationale of this so-called 'no sock' principle is that to authorize or encourage a person to engage an arresting officer in combat because of a difference of opinion concerning the validity of the arrest being effected or attempted produces an unhealthy situation; that orderly procedure dictates peaceful submission to duly constituted law enforcement authority in the first instance..."
While it is true that People v. Stevenson, supra, was decided on the basis of the terms of Penal Law § 35.15 () that decision hinged on the specific instructions given by the trial court to the jury which happened to be framed under that statute. The ruling of the Court of Appeals which was called upon to pass upon the procedural facts as they existed rather than as they might ideally have existed, does not diminish the import of § 35.27 as the more appropriate statute. 1
Our colleague in Clive W., further relies on Stevenson for the proposition that the arrest in question must be an "authorized" one based upon a probable cause standard sufficient to pass constitutional muster. Assuming arguendo that the standard for arrest is a state of underlying facts which would support a constitutionally sufficient determination of probable cause, the fact remains that "probable" or "reasonable cause" as used in the context of the arrest statutes (both terms are synonymous, cf. People v. Lombardi, 18 A.D.2d 177, 239 N.Y.S.2d 161, aff'd 13 N.Y.2d 1014, 245 N.Y.S.2d 595, 195 N.E.2d 306; People v. Malinsky, 20 A.D.2d 672, 246 N.Y.S.2d 884) admits of a standard far less than that required to sustain guilt beyond a reasonable doubt (People v. Lane, 10 N.Y.2d 347, 223 N.Y.S.2d 197, 179 N.E.2d 339). As stated by the Supreme Court in a classic definition first enunciated by Chief Justice Marshall inLocke v. U.S., 7 Cranch (11 U.S.) 339, 348, 3 L.Ed. 364:
"It may be added, that the term 'probable cause' according to its usual acceptation, means less than evidence which would justify condemnation ... It ... imports ... circumstances which warrant suspicion."
To puncture a prevailing notion which is legally unfounded, it is accordingly unnecessary that the underlying predicate offense become the subject of a conviction even if charged. (People v. Ailey, 76 Misc.2d 589, 350 N.Y.S.2d 981) so long as there existed in the eyes of the arresting officer, probable cause, viz., suspicion, that it was being committed. The test has been stated by the Court of Appeals in People v. Coffey, 12 N.Y.2d 443, 451, 240 N.Y.S.2d 721, 191 N.E.2d 263:
"The substance of all the definitions of...
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Joe A., Matter of
... ... § 140.05) ]; Matter of Christopher B., 122 Misc.2d 377, 471 N.Y.S.2d 228 [disorderly conduct]; Matter of Charles M., 143 A.D.2d 96, 531 N.Y.S.2d 346 [disorderly conduct] ), and other offenses, although crimes 5, are excluded by the nature of the crime and its constituent elements (see, Matter of Natasha C., 80 N.Y.2d 678, 593 ... ...
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