88 A.D.2d 766 | N.Y. App. Div. | 1982
— Judgment unanimously affirmed. Memorandum: In this appeal defendant attacks both her plea of guilty to criminal possession of stolen property, second degree, and her conviction after trial of escape, second degree, arising from an incident occurring while she was released on her own recognizance after her guilty plea and before sentencing. Defendant argues that on her trial for escape, second degree, the court erred in denying the defense request for a jury charge of resisting arrest as a lesser included offense. There is no merit to this argument. A person commits escape in the second degree when, “[hjaving been arrested for, charged with or convicted of a felony, he escapes from custody” (Penal Law, § 205.10, subd 2). Custody is defined as “restraint by a public servant pursuant to an authorized arrest or an order of a court” (Penal Law, 8 205.00, subd 2). 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, 8 205.30). Resisting arrest involves conduct occurring at the time of the arrest itself; escape involves conduct occurring subsequent to the arrest, when the person has already been taken into custody. The element of “intentionally prevent[ing] or attempt[ing] to prevent a * * * peace officer from effecting an authorized arrest” (Penal Law, 8 205.30) need not be established in order to prove guilt of escape, second degree. Thus, one may commit escape without resisting arrest, and resisting arrest is therefore not a lesser included offense of escape, second degree (see People v Johnson, 39 NY2d 364, 367; CPL 1.20, subd 37). We reject defendant’s argument that her guilty plea was erroneously accepted because the trial court did not inquire sufficiently into the factual basis therefor. How much a defendant should be questioned and on what issues before a plea may be accepted is a matter of discretion for the court depending
