People v. Lattanzio
| Decision Date | 07 December 1970 |
| Citation | 316 N.Y.S.2d 163,35 A.D.2d 313 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Louis Frank LATTANZIO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Howard A. Levine, Dist. Atty., Schenectady County (Elbert H. Watrous, Jr., Schenectady, of counsel), for respondent.
Thomas P. Feola, Schenectady, for appellant.
Before REYNOLDS, J.P., and STALEY, GREENBLOTT, COOKE and SWEENEY, JJ.
This is an appeal from a judgment of the County Court of Schenectady County rendered November 13, 1969 upon a verdict convicting defendant of the crime of resisting arrest in violation of section 205.30 of the Penal Law, as charged in one count of the indictment. The jury found defendant not guilty of assault in the second degree (Penal Law § 120.05), as set forth in another count.
Donald Frame, a motorcycle policeman assigned to checking the parking situation in the downtown area of the City of Schenectady, on April 5, 1969 received a complaint that an auto was parked in the middle of Jay Street. Proceeding there he found a maroon car parked into the street about seven feet from the car along the curb, an opened can of beer being on the seat and the keys in the ignition, and horns were being blown to the rear. After helping vehicles pass by and waiting a couple of minutes, the officer drove the car forward about thirty-five feet toward the curb, at which time defendant opened the right front door, and shouted obscenities and curses at Frame, whom he knew as a police officer, and accused him of stealing the car. Defendant slammed the door and, continuing his yells and curses, proceeded to the driver's side and repeated the obscenities, whereupon the officer stated that he had moved the car because it was blocking traffic. It was the day before Easter, it was in the City Hall area, there were two florists nearby and a lot of people in the streets, so that people stopped and gathered. When the obscenities continued, defendant was placed under arrest for disorderly conduct.
At that moment, defendant struck Frame in the face, pushed him against the car, struck his face again and held his helmet so that the strap choked him, during which time the officer grabbed his assailant and tried to get his raincoat over him. A passerby rendered some assistance and other policemen came to the scene.
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 (Penal Law § 205.30). To convict of this misdemeanor, it is not necessary that a defendant use force or violence in obstrucing the peace officer, it is enough that he engage in some conduct with the intent of preventing the officer from effecting an authorized arrest of himself or another (Practice Commentary by Denzer and McQuillan, McKinney's Consol.Laws of N.Y., Book 39, Penal Law § 205.30, p. 677). The jury was justified in finding that the arrest (Code Crim.Pro. § 167) of defendant for disoderly conduct was authorized (Penal Law § 240.20, subds. 1, 2, 3, 5; cf. People v. Davis, 303 N.Y. 235, 237, 101 N.E.2d 479, 480; People v. Barton, 30 A.D.2d 726, 291 N.Y.S.2d 577) and that defendant intentionally attempted to prevent Frame from effecting it.
Although the arrest resisted must be an authorized one in order to warrant a conviction under section 205.30 of the Penal Law (see 78 Yale L.J. 1128, n. 58), section 35.27 of the Penal Law (L.1968, c. 73, effective March 21, 1968) provides that a person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a peace officer when it would reasonably appear that the latter is a peace officer. This latter section, a part of Title C of the Penal Law dealing with defenses and of article 35 dealing with the defense of justification, does not create a new substantive crime (cf. People v. Curtis, 70...
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