People v Warmbrand (Darryl)

[*1] People v Warmbrand (Darryl) 2004 NY Slip Op 50728(U) Decided on July 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2001-1022 RO CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

DARRYL WARMBRAND, Appellant.

Appeal by defendant from a judgment of the Justice Court, Town of Orangetown, Rockland County (P. Phinney, J. ), rendered on July 11, 2001, convicting him, upon a jury verdict, of resisting arrest (Penal Law § 205.30) and imposing sentence

Judgment of conviction unanimously affirmed.

The defendant's contention that the superseding information charging him with resisting arrest was legally insufficient is without merit. Penal Law § 205.30 provides,
"A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person." A key element of the crime is that the arrest be authorized (People v
Jensen, 86 NY2d 248 [1995]; People v Alejandro, 70 NY2d 133, 135 [1987]).
The superseding information charging defendant with resisting arrest set forth sufficient non-hearsay allegations, establishing, if true, that the underlying arrest for disorderly conduct was authorized (CPL 100.40 [1] [c]; People v Alejandro, 70 NY2d at 135). Penal Law § 240.20 provides in pertinent part: "A person is guilty of disorderly conduct when, with intent to cause a public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: . . . 2. He makes unreasonable noise." In the factual portion of the superseding information subscribed to by the arresting officer, he alleged that upon responding to "1 Blue Hill Plaza, third floor, in the Town of Orangetown . . . in connection with a reported Disorderly Conduct," he advised defendant "to leave the location or he would be arrested." The defendant, however, "continued to scream and [*2]attempt[ed] to follow his girlfriend," despite the officer's "continued requests for him to leave the location," which action "caused a crowd to gather within the public part of the office and otherwise cause inconvenience therein." The allegations satisfied the elements of "unreasonable noise" and reckless creation by defendant of the risk of public inconvenience or alarm (see People v Bakolas, 59 NY2d 51 [1983]) thereby setting forth facts establishing that the underlying arrest was authorized. The non-hearsay allegations in the superseding information providing that "the defendant intentionally and
violently [did] flail his arms and wrestle with officers while said officers were attempting to
place handcuffs on the defendant" and that the defendant's actions caused himself and
the "other officers to be thrown against a wall and fall to the floor," established the remaining elements of the offense of resisting arrest, and the defendant's commission thereof.

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt of the charge of resisting arrest beyond a reasonable doubt. The testimony of the People's witnesses demonstrated that the underlying arrest for disorderly conduct was premised on probable cause and was therefore authorized (see People v Coulanges, 264 AD2d 853 [1999]; People v Jensen, 86 NY2d 248, supra). There was ample testimony adduced at trial to establish that defendant resisted an authorized arrest (People v Zeagers, 248 AD2d 739 [1998], lv denied 92 NY2d 863 [1998]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see CPL 470.15 [5]).

The sentence imposed was neither harsh nor excessive (People v Suitte, 90 AD2d 80 [1982]).

Defendant's remaining claims of error are either unpreserved or without merit.
Decision Date: July 01, 2004