PEOPLE v. NESMITH (2025)

Judgment, Supreme Court, New York County (Anne Thompson, J.), rendered March 11, 2024, convicting defendant, after a jury trial, of resisting arrest, and sentencing him to time served, unanimously reversed, on the law and facts, and the indictment dismissed.

As the People concede, defendant's conviction of resisting arrest was against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, 43 N.Y.3d 26, 229 N.Y.S.3d 62, 254 N.E.3d 606 [2024]).  The undisputed evidence established that defendant was cooperative when he was placed under arrest, handcuffed, physically restrained, and surrounded by police officers (see People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005];  People v. Jones, 172 A.D.2d 265, 266, 568 N.Y.S.2d 88 [1st Dept. 1991], lv denied 78 N.Y.2d 923, 573 N.Y.S.2d 476, 577 N.E.2d 1068 [1991]).  Defendant's subsequent physical resistance does not constitute resisting arrest, as he could not have intentionally “prevented or attempted to prevent a police officer from effecting an authorized arrest” by doing so (Penal Law § 205.30).