| People v Perez |
| 2008 NY Slip Op 00079 [47 AD3d 1192] |
| January 9, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AlfonzoPerez, Appellant. |
—[*1] John H. Crandall, Sr., District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered April25, 2006. The judgment convicted defendant, upon a jury verdict, of assault in the second degree(two counts), resisting arrest and obstructing governmental administration in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand as a matter of discretion in the interest of justice, the indictment is dismissed and the matteris remitted to Herkimer County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts of assault in the second degree (Penal Law § 120.05 [3]) and one count each ofresisting arrest (§ 205.30) and obstructing governmental administration in the seconddegree (§ 195.05). The conviction arises out of an altercation with police officers whowere investigating the origin of loud music emanating from defendant's apartment building.When the first two officers arrived at defendant's apartment, defendant opened the door a crackand stated that he had just gotten out of the shower and was not wearing any clothes. Defendantinitially refused to give his name in response to repeated inquiries from one of the officers, andhe then gave a name and date of birth for which a record search revealed no matches. When theofficers advised defendant that his neighbor had given them defendant's name, defendant initiallyreplied that he did not need to give his name but soon thereafter provided his correct name anddate of birth. When one of the officers informed defendant that he was under arrest for criminalimpersonation, disorderly conduct and obstructing governmental administration, defendantattempted to shut his door. A second officer grabbed defendant and pulled him from hisapartment. Defendant struck those two officers in the ensuing struggle.
Defendant contends that the evidence is legally insufficient to support the conviction.Although defendant preserved that contention for our review only with respect to the charge ofresisting arrest (see People v Gray, 86 NY2d 10, 19 [1995]), we exercise our power toreview defendant's contention with respect to the remaining charges as well, as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). "[T]he crime of resistingarrest does not occur if the arrest is illegal or unlawful" (People v Stevenson, 31 NY2d108, 111 [1972]; see People v Peacock, 68 NY2d 675, 676 [1986]), and we conclude thatthe evidence is legally insufficient to establish that the [*2]arrestwas lawful. The arresting officers lacked reasonable cause to believe that defendant committedan offense in their presence (see CPL 140.10 [1] [a]). Defendant was not required torespond to the officers' request for identification or to open his door to the officers (seePeople v Offen, 96 Misc 2d 147, 150 [1978]). Further, the officers were aware that defendantinitially provided a fictitious name, and thus they lacked reasonable cause to believe thatdefendant had committed the crime of criminal impersonation (see generally People vSadiq, 236 AD2d 638, 639 [1997], lv denied 89 NY2d 1100). In sum, none of themanifestations of defendant's exercise of the "right 'to be let alone' and to refuse to respond topolice inquiry" provided justification for defendant's arrest (People v May, 81 NY2d 725,728 [1992]). Because the arrest was not authorized, the evidence is legally insufficient to supportthe conviction of resisting arrest (see Peacock, 68 NY2d at 677; see generally People v Jones, 9 NY3d259 [2007]), obstructing governmental administration (see People v Vogel, 116 Misc2d 332 [1982]; see also People v Lupinacci, 191 AD2d 589 [1993]) and assault in thesecond degree under Penal Law § 120.05 (3) (see People v Milhouse, 246 AD2d119, 123 [1998]; see generally People v Voliton, 83 NY2d 192, 195 [1994]). Wetherefore reverse the judgment, dismiss the indictment and remit the matter to County Court forproceedings pursuant to CPL 470.45. In view of our decision, we do not address defendant'sremaining contentions. Present—Gorski, J.P., Martoche, Smith, Centra and Green, JJ.