Resisting Arrest Under New York Law (1)Have you been charged with resisting arrest in New York? In the wake of the Black Lives Matter protests and the constraints placed on peoples’ daily lives because of the coronavirus (COVID-19), many people have found themselves in the unfortunate position of being arrested. Quite often the charges against them include resisting arrest (a class “A misdemeanor”), subjecting them to a possible one year in jail. But what actually constitutes resisting arrest in New York?

Resisting Arrest – New York Law Penal Law § 205.30

Under New York Penal Law (PL) § 205.30, a person can be charged with resisting arrest when:

He intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.

Its clear that the statute applies to both someone who is the target of the arrest, as well as someone who attempts prevent the arrest of the actual target.  However, more often than not, a person is charged with resisting arrest when it relates to their arrest and not the arrest of someone else. In those instances, it is a secondary charge. More importantly, the statute makes clear that a person cannot legitimately be charged with resisting arrest unless their arrest was “authorized.” This begs the question what exactly does “authorized” mean?

An arrest is “authorized” under PL § 205.30, when law enforcement has “reasonable cause” to believe the person being arrested committed a crime. Indeed, New York Criminal Procedure Law (CPL) § 140.10(1) makes this point clear by stating, in relevant part, that a police officer may arrest a person for:

(a) Any offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence; and

(b) A crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise.

Thus, it is clear that the arresting officer must have “reasonable cause” to arrest a person. But what is “reasonable cause”?

Under New York law, CPL § 70.10(2) describes the circumstances in which “reasonable cause” exists as:

“Reasonable cause to believe that a person has committed an offense” exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

Thus, the arresting officer must be aware of reliable information that exist at the time, which would convince a reasonable person that it was more probable than not that a crime had been committed. Absent such circumstances, there’s no basis for the arrest.

In addition to the “reasonable cause” requirement, a police officer is also required to inform the person of the reason for the arrest. To be sure, CPL § 140.15(2) states in relevant part, that when a police officer is making an arrest pursuant to CPL § 140.10:

The arresting police officer must inform such person of his authority and purpose and of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.

When CPL § 140.15(2) and CPL § 140.10(1) are read together, it is clear that the arresting police officer must have had reason prior to arresting the person and inform them of that reason. After all, a police officer can only inform a person that they are being arrested, as required by CPL § 140.15(2) only after they have an “authorized” reason to place the person under arrest.

Although CPL § 70.10(2) makes clear the arresting officer does not have to inform the person being arrested of the reason for the arrest if they resist, it is equally clear the police officer must have a prior reason to arrest the person in the first instance. After all, a person can only resist or flee from an arrest if they were actually being arrested based upon “reasonable cause“, pursuant to CPL § 140.10(1).

Moreover, if a police officer doesn’t have “reasonable cause“ to sustain the initial arrest, a person cannot be charged with the secondary crime of resisting arrest, as the arrest was not “authorized.”

What to Do If You Are Stopped and Arrested For a Suspected Crime

So what should you do if you are stopped and arrested for a suspected crime? First and foremost, do not resist. Doing so usually results in additional charges, which may include more than resisting arrest.

Secondly, you should remember that you have rights.

Fifth Amendment Rights

The Fifth Amendment of the United States Constitution provides every citizen and resident of the U.S. the right to remain silent in a criminal proceeding. It states, in part: “[n]o person…shall be compelled in any criminal case to be a witness against himself.” In short, a person cannot be compelled to make a statement that could be self-incriminating.

It is important to note that the term statement has been interpreted to include the password to your mobile devices (i.e. smart phones, tablets and computers), but not necessarily biometric security measures, such as  your fingerprint or facial recognition.

Sixth Amendment Rights

Similar to the right to remain silent, you have a constitutional right under the Sixth Amendment to have an attorney present if you decide to answer any questions or make any statements.  Once you tell law enforcement that you choose to exercise your right to an attorney/counsel they are required to cease all questioning that would lead to an incriminating statement. Even if law enforcement continues to ask such questions you can continue to evoke your right.

However, law enforcement can continue to ask the standard background questions to determine your name, age, place of residence and occupation.

Why Hire an Attorney?

The results of all criminal prosecutions are determined by the facts and circumstances of your specific case and the skill and experience of your defense attorney. A skilled defense attorney will analyze all the relevant issues in your case at the earliest stage possible to determine the strengths and weaknesses of your case.

Remember, you have rights and the district attorney still has the burden of proof in a criminal prosecution.

If you or someone you know has been charged with resisting arrest in New York, call the Law Office of Kevin J. Deloatch, Esq. at (646) 792-2156. The outcome of a criminal case is often determined by what occurs at the beginning stages of the prosecution. Call today for a free consultation.