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People v. Branch

Appellate Division of the Supreme Court of New York, Third Department
Jan 18, 1996
223 A.D.2d 882 (N.Y. App. Div. 1996)

Summary

holding that a person cannot be convicted of resisting arrest where the officer was attempting to "secure" the person, pursuant to police department policy, but did not have probable cause at that time to actually arrest the person

Summary of this case from Curry v. City of Syracuse

Opinion

January 18, 1996

Appeal from the County Court of Albany County (Breslin, J.).


While executing a "no-knock" warrant for the search of both apartments of a two-family dwelling in the City of Albany, Albany Police Detective William Murphy encountered defendant in the downstairs apartment. Consistent with the police department policy of "secur[ing] everybody when [executing] a search warrant, for their safety and [that of the police], and to maintain the evidence, if any, within the apartment", Murphy directed defendant to get down on the floor and place his hands where they could be seen. Undeniably, defendant failed to comply with that direction and physically resisted Murphy's efforts to bring him under control. After defendant was fully secured, Murphy found a plastic bag containing crack cocaine under a nearby china closet, giving rise to the counts of the indictment charging criminal possession of a controlled substance in the third and fourth degrees. Following a jury trial, defendant was convicted of resisting arrest and the jury was unable to reach a verdict on the remaining charges. Defendant now appeals.

Because we agree with defendant that the trial evidence did not establish the elements of the crime of resisting arrest (Penal Law § 205.30), we are constrained to reverse the judgment of conviction and dismiss the third count of the indictment. Fundamentally, "[i]t is an essential element of the crime of resisting arrest that the arrest be authorized and, absent proof that the arresting officer had a warrant or probable cause to arrest defendant for commission of some offense, a conviction cannot stand" ( People v Alejandro, 70 N.Y.2d 133, 135; see, People v Peacock, 68 N.Y.2d 675). Although we have no quarrel with Murphy's decision to "secure" defendant ( see, People v Smith, 164 A.D.2d 456, affd 78 N.Y.2d 897), such a limited seizure is not the type of "arrest" contemplated by Penal Law § 205.30. Based upon our review of the record, and particularly Murphy's candid testimony that the purpose for the "arrest" was to secure defendant in accordance with police department policy, we reject the People's present contention that under all the circumstances, defendant's "furtive conduct" provided the requisite probable cause ( cf., People v Ortiz, 103 A.D.2d 303, 305-306, affd 64 N.Y.2d 997). Finally, we perceive no merit in the argument that by "fail[ing] to timely object to the seizure of his person", defendant waived any objection to his unauthorized arrest.

White, Casey, Peters and Spain, JJ., concur. Ordered that the judgment is reversed, on the law, and third count of the indictment is dismissed.


Summaries of

People v. Branch

Appellate Division of the Supreme Court of New York, Third Department
Jan 18, 1996
223 A.D.2d 882 (N.Y. App. Div. 1996)

holding that a person cannot be convicted of resisting arrest where the officer was attempting to "secure" the person, pursuant to police department policy, but did not have probable cause at that time to actually arrest the person

Summary of this case from Curry v. City of Syracuse
Case details for

People v. Branch

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. McKINLEY BRANCH…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 18, 1996

Citations

223 A.D.2d 882 (N.Y. App. Div. 1996)
637 N.Y.S.2d 220

Citing Cases

Curry v. City of Syracuse

Stevenson, 31 N.Y.2d at 112, 286 N.E.2d at 448, 335 N.Y.S.2d at 56. See also People v. Branch, 223 A.D.2d…