PEOPLE v. PEREZ (2008)

Defendant appeals from a judgment convicting him upon a jury verdict of two counts of assault in the second degree (Penal Law § 120.05[3] ) and one count each of resisting arrest (§ 205.30) and obstructing governmental administration in the second degree (§ 195.05).   The conviction arises out of an altercation with police officers who were 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 crack and stated that he had just gotten out of the shower and was not wearing any clothes.   Defendant initially refused to give his name in response to repeated inquiries from one of the officers, and he then gave a name and date of birth for which a record search revealed no matches.   When the officers advised defendant that his neighbor had given them defendant's name, defendant initially replied that he did not need to give his name but soon thereafter provided his correct name and date of birth.   When one of the officers informed defendant that he was under arrest for criminal impersonation, disorderly conduct and obstructing governmental administration, defendant attempted to shut his door.   A second officer grabbed defendant and pulled him from his apartment.   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 of resisting arrest (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), we exercise our power to review defendant's contention with respect to the remaining charges as well, as a matter of discretion in the interest of justice (see CPL 470.15[6] [a] ).  “[T]he crime of resisting arrest does not occur if the arrest is illegal or unlawful” (People v. Stevenson, 31 N.Y.2d 108, 111, 335 N.Y.S.2d 52, 286 N.E.2d 445;  see People v. Peacock, 68 N.Y.2d 675, 676, 505 N.Y.S.2d 594, 496 N.E.2d 683), and we conclude that the evidence is legally insufficient to establish that the arrest was lawful.   The arresting officers lacked reasonable cause to believe that defendant committed an offense in their presence (see CPL 140.10[1][a] ).   Defendant was not required to respond to the officers' request for identification or to open his door to the officers (see People v. Offen, 96 Misc.2d 147, 150, 408 N.Y.S.2d 914).   Further, the officers were aware that defendant initially provided a fictitious name, and thus they lacked reasonable cause to believe that defendant had committed the crime of criminal impersonation (see generally People v. Sadiq, 236 A.D.2d 638, 639, 654 N.Y.S.2d 35, lv. denied 89 N.Y.2d 1100, 660 N.Y.S.2d 394, 682 N.E.2d 995).   In sum, none of the manifestations of defendant's exercise of the “right ‘to be let alone’ and to refuse to respond to police inquiry” provided justification for defendant's arrest (People v. May, 81 N.Y.2d 725, 728, 593 N.Y.S.2d 760, 609 N.E.2d 113).   Because the arrest was not authorized, the evidence is legally insufficient to support the conviction of resisting arrest (see Peacock, 68 N.Y.2d at 677, 505 N.Y.S.2d 594, 496 N.E.2d 683;  see generally People v. Jones, 9 N.Y.3d 259, 848 N.Y.S.2d 600, 878 N.E.2d 1016), obstructing governmental administration (see People v. Vogel, 116 Misc.2d 332, 457 N.Y.S.2d 666;  see also People v. Lupinacci, 191 A.D.2d 589, 595 N.Y.S.2d 76) and assault in the second degree under Penal Law § 120.05(3) (see People v. Milhouse, 246 A.D.2d 119, 123, 676 N.Y.S.2d 555;  see generally People v. Voliton, 83 N.Y.2d 192, 195, 608 N.Y.S.2d 945, 630 N.E.2d 641).   We therefore reverse the judgment, dismiss the indictment and remit the matter to County Court for proceedings pursuant to CPL 470.45.   In view of our decision, we do not address defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and as a matter of discretion in the interest of justice, the indictment is dismissed and the matter is remitted to Herkimer County Court for proceedings pursuant to CPL 470.45.

MEMORANDUM: