| People v Lepard |
| 2011 NY Slip Op 02971 [83 AD3d 1214] |
| April 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Chris Lepard,Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Greene County (Lalor, J.), renderedNovember 10, 2009, upon a verdict convicting defendant of the crime of resisting arrest.
On a Sunday morning in May 2008, defendant stopped his vehicle across the street from thescene of a routine traffic stop, at which Deputy Sheriff Travis Richards had stopped DominickAdami for speeding. From his car, defendant allegedly began shouting obscenities because,according to both Adami and defendant, defendant was upset that someone had broken into hiscar and had stolen the stereo therefrom. To Richards—who was sitting in his police carwith the windows closed when defendant arrived—it appeared that defendant was shoutingat Adami. Defendant then exited his vehicle and walked toward Adami's car. According toRichards, defendant appeared to be threatening Adami and continued to shout obscenities as heapproached Adami's car. Richards got out of his car and began to approach defendant, yelling athim to get back into his car and leave. In response, defendant informed Richards that he neededto speak with him to fill out a report. Defendant eventually returned to his own vehicle and droveaway. After Richards completed the traffic stop of Adami, he proceeded to search for defendantand contacted police officer Matthew Mauriello for assistance in locating him. Approximately 20to 30 minutes later, Richards found defendant in a public place, approached him and advised himthat he was under arrest for disorderly conduct, at which point defendant reportedly became"agitated." Richards attempted to handcuff him, but defendant pulled away, [*2]turned his back and placed his arms out of Richards' reach.Richards pressed against defendant's back and pushed him up against a nearby parked car, butdefendant continued to resist the application of handcuffs. Mauriello arrived and attempted toassist Richards in arresting defendant. While Mauriello was doing so, defendant grabbedMauriello's finger and bent it down, injuring it. Ultimately, Mauriello and Richards were able tohandcuff and subdue defendant.
Defendant waived indictment and was arraigned on a superior court information charginghim with assault in the second degree, resisting arrest and obstructing governmentaladministration.[FN1]County Court denied defendant's pretrial motion to dismiss the superior court information anddefendant was thereafter convicted of resisting arrest following a jury trial.[FN2]Defendant now appeals and we affirm.
Contrary to defendant's contention, we are satisfied that the verdict was based upon legallysufficient evidence and was in accord with the weight of the evidence. A conviction of resistingarrest requires a showing that defendant "intentionally prevent[ed] or attempt[ed] to prevent apolice officer or peace officer from effecting an authorized arrest" (Penal Law § 205.30).The first issue raised by defendant here is whether the People established the existence ofprobable cause for defendant's arrest, thereby proving that the arrest was authorized. Upon ourreview of the record, we conclude that the People sufficiently demonstrated Richards' reasonablebelief that defendant had committed the offenses of disorderly conduct and obstructinggovernmental administration when he first encountered him at the scene of the traffic stop.
The evidence at trial established that the area in which the traffic stop occurred included amunicipal building, a diner and private residences and that defendant was swearing the entiretime and appeared to be shouting at Adami that he was going to kill him. Inasmuch as the trafficstop took place on a Sunday morning, Richards' testimony supports a finding that he could havereasonably believed that the diner was occupied by patrons and that people were in their homesand, therefore, that defendant was recklessly creating a risk of public inconvenience, annoyanceor alarm (see generally Penal Law § 240.20 [3]; People v McRay, 51 NY2d594, 602 [1980]; People v Williams,25 AD3d 927, 928 [2006], lv denied 6 NY3d 840 [2006]). In light of this evidencethat Richards reasonably believed that defendant had committed the crime of disorderly conduct,the People established that his arrest was authorized (see People v Bruno, 47 AD3d 1064, 1066 [2008], lv denied10 NY3d 809 [2008]). Richards further testified that he believed [*3]that defendant's conduct jeopardized the safety of the traffic stopand caused an unnecessary delay in the issuance of a routine traffic ticket, thus interruptingRichards in the performance of his official duties. These allegations were sufficient todemonstrate that Richards also had probable cause to arrest defendant for obstructinggovernmental administration (see Penal Law § 195.05; People v Graham, 54 AD3d 1056,1058 [2008]).
As for the requisite mental state, the testimony of Richards and Mauriello concerningdefendant's body language and physical conduct in refusing to allow them to handcuff him,together with the fact that it took two officers to restrain him, demonstrates his intent to resistarrest (see Penal Law § 15.05; People v Stevenson, 31 NY2d 108, 113[1972]; People v Somerville, 72AD3d 1285, 1287 [2010]; People v Clark, 241 AD2d 710, 710 [1997], lvdenied 90 NY2d 1010 [1997]; People v Lattanzio, 35 AD2d 313, 314 [1970]).Viewing the evidence in the light most favorable to the People, we find that there is a valid lineof reasoning and the existence of permissible inferences to support the conclusion that defendantresisted arrest (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Baltes, 75 AD3d 656,658 [2010], lv denied 15 NY3d 918 [2010]; People v Somerville, 72 AD3d at1286). Likewise, even if a different verdict would not have been unreasonable, upon our ownreview of the evidence and according the appropriate deference to the jury's credibilitydeterminations, we conclude that the verdict was not against the weight of the credible evidence(see People v Bleakley, 69 NY2d at 495; People v Baltes, 75 AD3d at 658;People v Somerville, 72 AD3d at 1286).
Finally, we note that, in light of the lower threshold of proof necessary to establish probablecause for an arrest than proof beyond a reasonable doubt, which is the People's ultimate burden attrial (see People v Laltoo, 22 AD3d230 [2005]), a conviction for resisting arrest will stand even though a defendant is notcharged with, or is ultimately acquitted of, the underlying offense that prompted the arrest in thefirst place (see e.g. People v Shapiro, 96 AD2d 626, 626-627 [1983]; see also Peoplev Laltoo, 22 AD3d at 230; People v McKinson, 249 AD2d 27, 28 [1998], lvdenied 92 NY2d 901 [1998]). Accordingly, County Court properly denied defendant'smotions to dismiss that charge and to set aside the verdict.
Defendant's remaining contentions have been considered and are unavailing.
Spain, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The original information alsocharged defendant with disorderly conduct, but was later superseded by the superior courtinformation, which omitted this charge.
Footnote 2: Defendant was acquitted of theassault charge and County Court granted defendant's motion to dismiss the charge of obstructinggovernmental administration at the close of the proof at trial. However, County Court denieddefendant's motion to dismiss the superior court information made at the conclusion of thePeople's case, and renewed at the close of proof, with respect to the charge of resisting arrest. Thecourt likewise denied defendant's posttrial motion to set aside the verdict.