IN RE: KARA M. (Anonymous)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: KARA M. (Anonymous), Appellant.

Decided: September 22, 1997

Before MILLER, J.P., and RITTER, SANTUCCI and FLORIO, JJ. Shamberg Marwell Hocherman Davis & Hollis, P.C., Mount Kisco (P. Daniel Hollis, III and David S. Steinmetz, of counsel), for appellant. Marilyn J. Slaatten, County Attorney, White Plains (Stacey Dolgin-Kmetz, Lea L. Bahl, and Marguerite Wiess, of counsel), for respondent.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Westchester County (Shapiro, J.), entered August 26, 1996, which, upon a fact-finding order of the same court, entered May 10, 1996, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the crime of resisting arrest, adjudged her to be a juvenile delinquent and imposed a six-month conditional discharge.   The appeal brings up for review the fact-finding order entered May 10, 1996.

ORDERED that the order of disposition is affirmed, without costs or disbursements.

 “Penal Law § 205.30 defines resisting arrest as intentionally preventing or attempting to prevent a police officer ‘from effecting an authorized arrest’ ” (People v. Peacock, 68 N.Y.2d 675, 676, 505 N.Y.S.2d 594, 496 N.E.2d 683).   Thus, “the 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 also, People v. Peacock, supra, at 677, 505 N.Y.S.2d 594, 496 N.E.2d 683;  Matter of Charles M., 143 A.D.2d 96, 531 N.Y.S.2d 346).   Contrary to the appellant's contention, the charge of resisting arrest should not have been dismissed on the basis that the arrest was not authorized.   Rather, the evidence adduced at the hearing demonstrated that probable cause for the arrest existed.   The facts and circumstances known to the arresting officer would warrant a reasonable person, who possessed the same expertise as the officer, to conclude that a crime was being or had been committed (see, People v. Rivera, 166 A.D.2d 678, 561 N.Y.S.2d 268;  CPL 140.10[1];  70.10[2];  Penal Law § 240.26[3];  §§ 240.20, 195.05;  see also, Matter of Leonard D., 185 A.D.2d 315, 587 N.Y.S.2d 216;  Matter of Charles M., supra).

Furthermore, viewing the evidence in the light most favorable to the presentment agency (see, Matter of Leonard D., supra;  Matter of William T., 182 A.D.2d 766, 582 N.Y.S.2d 759), we find that it was legally sufficient to establish beyond a reasonable doubt the appellant's guilt of resisting arrest (see, People v. Caidor, 187 A.D.2d 441, 589 N.Y.S.2d 540).  Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5];  Matter of William T., supra;  Matter of Judah J., 182 A.D.2d 621, 582 N.Y.S.2d 224).

 The court did not improvidently exercise its discretion in imposing a six-month conditional discharge since the record supports the court's determination by a preponderance of the evidence that such disposition was the “least restrictive alternative available” to satisfy “the needs and best interests of the appellant as well as the need for protection of the community” (Family Ct.Act § 353.1[1], [2];  § 352.2[1][a] ).


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