THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v CHRIS LEPARD, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
922 NYS2d 585
Greene County Court (Lalor, J.)
On a Sunday morning in May 2008, defendant stopped his vehicle across the street from the scene of a routine traffic stop, at which Deputy Sheriff Travis Richards had stopped Dominick Adami 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 his car and had stolen the stereo therefrom. To Richards—who was sitting in his police car with the windows closed when defendant arrived—it appeared that defendant was shouting at Adami. Defendant then exited his vehicle and walked toward Adami‘s car. According to Richards, defendant appeared to be threatening Adami and continued to shout obscenities as he approached Adami‘s car. Richards got out of his car and began to approach defendant, yelling at him to get back into his car and leave. In response, defendant informed Richards that he needed to speak with him to fill out a report. Defendant eventually returned to his own vehicle and drove away. After Richards completed the traffic stop of Adami, he proceeded to search for defendant and contacted police officer Matthew Mauriello for assistance in locating him. Approximately 20 to 30 minutes later, Richards found defendant in a public place, approached him and advised him that he was under arrest for disorderly conduct, at which point defendant reportedly became “agitated.” Richards attempted to handcuff him, but defendant pulled away, 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, but defendant continued to resist the application of handcuffs. Mauriello arrived and attempted to assist Richards in arresting defendant. While Mauriello was doing so, defendant grabbed Mauriello‘s finger and bent it down, injuring
Defendant waived indictment and was arraigned on a superior court information charging him with assault in the second degree, resisting arrest and obstructing governmental administration.1 County Court denied defendant‘s pretrial motion to dismiss the superior court information and defendant was thereafter convicted of resisting arrest following a jury trial.2 Defendant now appeals and we affirm.
Contrary to defendant‘s contention, we are satisfied that the verdict was based upon legally sufficient evidence and was in accord with the weight of the evidence. A conviction of resisting arrest requires a showing that defendant “intentionally prevent[ed] or attempt[ed] to prevent a police officer or peace officer from effecting an authorized arrest” (
The evidence at trial established that the area in which the traffic stop occurred included a municipal building, a diner and private residences and that defendant was swearing the entire time and appeared to be shouting at Adami that he was going to kill him. Inasmuch as the traffic stop took place on a Sunday morning, Richards’ testimony supports a finding that he could have reasonably believed that the diner was occupied by patrons and that people were in their homes and, therefore, that defendant was recklessly creating a risk of public inconvenience, annoyance or alarm (see generally
As for the requisite mental state, the testimony of Richards and Mauriello concerning defendant‘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 resist arrest (see
Finally, we note that, in light of the lower threshold of proof necessary to establish probable cause for an arrest than proof beyond a reasonable doubt, which is the People‘s ultimate burden at trial (see People v Laltoo, 22 AD3d 230 [2005]), a conviction for resisting arrest will stand even though a defendant is not charged with, or is ultimately acquitted of, the underlying offense that prompted the arrest in the first place (see e.g. People v Shapiro, 96 AD2d 626, 626-627 [1983]; see also People v Laltoo, 22 AD3d at 230; People v McKinson, 249 AD2d 27, 28 [1998], lv denied 92 NY2d 901 [1998]). Accordingly, County Court properly denied defendant‘s motions to dismiss that charge and to set aside the verdict.
Defendant‘s remaining contentions have been considered and are unavailing.