People v Stewart (Donovan)

[*1] People v Stewart (Donovan) 2004 NY Slip Op 50612(U) Decided on June 9, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED June 9, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOPLH and ANGIOLILLO, JJ.
NO. 2002-1202 D CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

DONOVAN A. STEWART, Appellant.

Appeal by defendant from a judgment of the City Court, City of Poughkeepsie, Dutchess County (R. McGaw, J.), rendered July 26, 2002, convicting him of resisting arrest (Penal Law § 205.30) and imposing sentence.

Judgment of conviction unanimously reversed on the law, accusatory instrument dismissed and surcharge and fee, if paid, remitted.

The accusatory instrument charging defendant with resisting arrest (Penal Law § 205.30) is jurisdictionally defective inasmuch as the factual part thereof does not contain allegations establishing each and every element of the offense charged, including probable cause to arrest defendant (see People v Alejandro, 70 NY2d 133
[1987]; People v Rodriguez, 1 Misc 3d 135 [App Term, 9th & 10th Jud Dists 2003]; People v Valvano, NYLJ, Nov. 27, 2000 [App Term, 9th & 10th Jud Dists]; People v LaMarca, NYLJ, Mar. 11, 1999 [App Term, 9th & 10th Jud Dists]; People v Stellaci, NYLJ, July 1, 1998 [App Term, 9th & 10th Jud Dists]).
Decision Date: June 09, 2004