People v Hoffman (Andrew)

[*1] People v Hoffman (Andrew) 2004 NY Slip Op 51964(U) Decided on April 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2004
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT:: McCABE, P.J., LIFSON and SKELOS, JJ
2002-446 N CR.

The People of the State of New York, Respondent,

against

Andrew J. Hoffman, Appellant.

Appeal by defendant from a judgment of the District Court, Nassau County

C. Quinn, J.), rendered on March 7, 2002, convicting him of resisting arrest (Penal Law § 205.30) and imposing sentence.

Judgment of conviction unanimously reversed on the law and as a matter of discretion in the interest of justice, and matter remanded to the court below for a new trial.

Contrary to defendant's contention, the evidence was legally sufficient to establish defendant's guilt of resisting arrest and the verdict was not against the weight of the evidence (see People v Contes, 60 NY2d 620 [1983]; CPL 470.15 [5]). There was evidence that the underlying arrest was authorized and that the defendant struggled with the officer as he was being handcuffed (see Penal Law § 205.30; People v Zeagers, 248 AD2d 739 [1998]). However, we find that due to an error in the court's charge to the jury, a new trial is warranted.

A critical element of the charge of resisting arrest is that the arrest be authorized. In its instruction to the jury concerning the elements of the crime of resisting arrest, the trial court included as part of the charge the language contained in Penal Law § 35.27 as follows: "A person may not use physical force to resist an arrest, whether authorized or unauthorized which is being effected or attempted by a police officer..." The inclusion of this instruction in the midst of its charge on the elements of resisting arrest "blurred or negated" the elements of the charge of resisting arrest as defendant could be found guilty of the crime of resisting arrest even if the arrest was unauthorized, if he used physical force (People v Rosa, 277 AD2d 506 [2000]; People v Harewood, 63 AD2d 876 [1978]; cf. People v Commesso, 184 AD2d 719 [1992]).

In view of the foregoing, we need not pass on the remaining issue raised on appeal. [*2]
Decision Date: April 22, 2004