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DEFENDANT WAS COOPERATIVE DURING HIS ARREST; HIS SUBSEQUENT RESISTANCE, THEREFORE, DID NOT CONSTITUTE “RESISTING ARREST;” INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s resisting-arrest conviction was against the weight of the evidence and dismissed the indictment. Defendant was cooperative when he was placed under arrest. His subsequent resistance, therefore, did not constitute resisting arrest:

As the People concede, defendant’s conviction of resisting arrest was against the weight of the evidence … . The undisputed evidence established that defendant was cooperative when he was placed under arrest, handcuffed, physically restrained, and surrounded by police officers … . 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). People v Nesmith, 2025 NY Slip Op 06555, First Dept 11-25-24

Practice Point: Any resistance by a defendant which occurs after arrest does not constitute the crime of “resisting arrest.”

 

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