People v. Greene

• Decision Date: 20 November 1995
• Citation: 221 A.D.2d 559,634 N.Y.S.2d 144
• Parties: The PEOPLE, etc., Respondent, v. Randolph GREENE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 144

634 N.Y.S.2d 144

221 A.D.2d 559

The PEOPLE, etc., Respondent, v. Randolph GREENE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 20, 1995.

Betty A. Rugg, Baldwin, for appellant.

Denis Dillon, District Attorney, Mineola (Peter A. Weinstein and Peter Shapiro, of counsel), for respondent.

Before THOMPSON, J.P., and ALTMAN, GOLDSTEIN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered April 23, 1993, convicting him of assault in the second degree, obstructing governmental administration in the second degree, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant became involved in a physical altercation with several police officers when he allegedly attempted to prevent them from issuing a desk appearance ticket to another individual. The defendant was thereafter charged with assault in the second degree pursuant to Penal Law § 120.05(3), i.e., he was charged with intentionally preventing a police officer from performing a lawful duty, and causing physical injury to that officer. The defendant was also charged with obstructing governmental administration and resisting arrest.

With respect to the second degree assault count, the court instructed the jury, inter alia, that if it found that the officer in question was attempting to arrest the defendant, then as a matter of law "he was performing a lawful duty". As to the count charging the defendant with obstructing governmental administration, the court instructed the jury that, as a matter of law, issuing a desk appearance ticket was an "official function" of a Nassau County Police Officer. The court did not instruct the jury to consider whether the police officer's actions were authorized. In charging the jury with respect to the resisting arrest count, the court read the statutory definition, which included the requirement that the arrest was "authorized" but offered no further instruction or explanation with respect to the concept of authorization (see, CPL 300.10[3] ). We reverse.

A defendant may not be convicted of resisting arrest or interfering with an officer in the performance of an official function unless it is established that the police were engaged in "authorized" conduct (People v. Voliton, 83 N.Y.2d 192, 196, 608 N.Y.S.2d 945, 630 N.E.2d 641; People v. Peacock, 68 N.Y.2d 675, 677, 505 N.Y.S.2d 594, 496 N.E.2d 683; People v. Lupinacci, 191 A.D.2d 589, 595 N.Y.S.2d 76; People v. Harewood, 63 A.D.2d 876, 406 N.Y.S.2d 44). Similarly, in order to convict the defendant of assault in the second degree pursuant to Penal Law § 120.05(3), it was necessary for the People to prove, inter alia, that the defendant's acts were committed with intent to prevent the officers from performing a "lawful duty" (see, People v. Voliton, supra, at 195, 608 N.Y.S.2d 945, 630 N.E.2d 641; People v. Smith, 50 A.D.2d 670, 672, 375 N.Y.S.2d 194).

Here, however, the court's charge effectively removed from the jury's consideration the lawfulness of the police conduct, and also whether their actions...