People v Sheets

[*1] People v Sheets 2009 NY Slip Op 51583(U) [24 Misc 3d 1223(A)] Decided on July 22, 2009 Just Ct Of Town Of Webster, Monroe County DiSalvo, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2009
Just Ct of Town of Webster, Monroe County

The People of the State of New York, Plaintiff,

against

Charles F. Sheets, Defendant.



09010190



Appearances:

Amanda Balling, Assistant District Attorney

Thomas J. Cocuzzi, Attorney For Defendant.

Thomas J. DiSalvo, J.

The defendant was charged with No Plate Lamp, VTL

375(2)(A)(4), Disobeying a Traffic Control Device, VTL 1110(A), Aggravated Unlicensed

Operation, 3rd Degree, VTL 511(1)(A) and Resisting Arrest, PL 205.30, stemming from a traffic

stop by the Webster Police on January 13, 2009 at 12:58 A.M. on N.Y.S. Route 104 westbound.

The defendant was arraigned in Webster Justice Court at approximately 4:55 A.M. on that date.

Bail was set in the amount of $1,000.00 cash or $3,000.00 insurance bond. Despite being given

the opportunity to make two phone calls during the "off hour" arraignment, the defendant did not

wish to make any phone calls to either an attorney or a friend or family member.[FN1] The case was

adjourned for appearance of attorney. The defendant eventually retained attorney Thomas J. [*2]

Cocuzzi, who filed no motions, but set the matter down for a bench trial which took place on

June 12, 2009.

Facts of the Case.

The people presented three witnesses at the trial, to wit: Officer Shaun Welch, Officer

David Herrle and Sgt. Carl Adriaansen. Upon the completion of the People's case, defense

counsel made a motion for a Trial Order of Dismissal, pursuant to CPL 290.10(1)(a), relative to

the charge of Resisting Arrest. The defendant then took the stand in his own defense. Upon

resting his case, defense counsel again renewed his motion for a Trial Order of Dismissal. The

court reserved decision on the defendant's said motion for a Trial Order of Dismissal.

Officer Shaun Welch was the People's first witness. Officer Welch testified to having

been traveling southbound on Five Mile Line Road, when he observed the defendant's vehicle

traveling a northbound direction. The officer testified to observing that the vehicle did not have

an operating rear plate lamp. Whereupon he turned and followed the vehicle in question

northbound and then on to the westbound portion of N.Y.S. Route 104. The officer testified to

pacing said vehicle who he said was traveling 71 miles per hour in a 55 miles per hour zone.

Upon stopping said vehicle the officer spoke briefly to the defendant, requesting his driver's

license. The defendant did not produce a license and advised Officer Welch that his drivers's

license had been suspended due to a failure to pay child support, but believed that issue had since

been resolved. Whereupon, the defendant was asked get out of the vehicle. Upon being asked

to exit his vehicle the officer escorted the defendant to a spot behind the defendant's vehicle and

in front of the officer's patrol car. Officer Welch testified that he then performed a pat down and

frisk of the defendant. Soon thereafter Officer David Herrle arrived as a backup. Officer Welch [*3]

advised the defendant that he was going to be put in the police car while the matter was being

sorted out. Nevertheless, the defendant was not handcuffed at that time. Both officers testified

that the defendant then suddenly ran from the scene. The defendant ran down the embankment of

the expressway bridge over Gravel Road. Officer Welch took off after the defendant and made

contact with him near the base of said hill. Officer Herrle also pursued the defendant. The

defendant broke away from Officer Welch and ran across Gravel Road and into the backyards of

homes on the south side of Regina Drive. The defendant was again apprehended, this time by

both officers, in about the third back yard down from Gravel Road. At that time the officer

attempted to subdue the defendant, which included pepper spray followed by knees to the

abdomen. None of which resulted in the defendant being brought under control. During that

time Sgt. Carl Adriaansen of the Webster Police arrived on the scene. He ordered the defendant

to cease and desist his resistance. However, the defendant continued to wrestle with Officers

Welch and Herrle. Sgt. Adriaansen then warned the defendant that he would be tasered if he

continued to struggle. Despite that fact, the defendant persisted in attempting to get away. He

was then tasered by Sgt. Adriaansen. This finally resulted in the defendant being subdued and

taken into custody.

The defendant testified that he was previously convicted of a felony assault involving

Officer Michael Burns of the Webster Police Department in 2004. As a result he was sentenced

to state prison time, but was eventually released on parole. The defendant testified that he was

very afraid of retribution from the Webster Police. He explained that he took off over the guard

rail and ran away from the scene because he was afraid of being beaten by the Webster Police.

The defendant testified that his fear was based on his treatment by the Webster Police when he [*4]

was arrested for the assault of Officer Burns back in 2004. He claimed to having been assaulted

by the police at that time and indicated that he was afraid he would be subjected to the same

treatment once he was in the custody of the Webster Police.The defendant offered no proof of

any maltreatment in 2004. Nor did he testify as to any action he or his attorney took on his

behalf relative to any alleged maltreatment at that time. In the instant action, the defendant did

not testify as to any threats made to him at the time of the stop in question. He did not indicate

any specific activity taken by the police that would suggest he was in physical danger from the

officers before he fled the scene. He testified to Officer Welch knowing who he was. He also

testified to one of the officer at the scene of the stop saying "So this is the guy who assaulted

[Officer] Burns".

As previously indicated, at the conclusion of the People's case, defense counsel

moved for a Trial Order of Dismissal, pursuant to CPL 290.10(1)(a), relative to the charge of

resisting arrest, on the ground that "... the trial evidence is not legally sufficient to establish the

offense charged therein or any lesser included offense."Penal Law Section 205.30 states that

"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."

Issues Presented By Defendant's Motion

A. Was the demand for the defendant to exit the vehicle justified?

B. Was the defendant under arrest at the time he fled the scene of his detention?

C. Was the Arrest an Authorized Arrest?

D. Were the actions of the Defendant Justified?

A. Was the demand for the defendant to exit the vehicle justified?

The defense did not contest that Officer Welch had reasonable cause to stop the defendant

as a result of the fact that the rear plate lamp was not operative, which violated V.T.L

375(2)(A)(4). See Whren v. U.S. (1996) 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89. In that

case it was held that

"Thus, as long as a police officer possesses a legal basis to stop a vehicle for a traffic violation, the defendant cannot argue that the traffic violation was used as a mere pretext to investigate an unrelated serious crime. In other words, in determining whether the 4th Amendment has been violated, Courts must apply a standard of objective reasonableness, without regard to the underlying intent or motivation of the officer." Handling a DWI Case in New York, Section 1:9.

See also People v. [Frank] Robinson (2001) 97 NY2d 341, 741 NYS2d 147, wherein the

Court of Appeals adopted the ruling in the Whren case.[FN2]

Certainly Officer Welch had authority to order the defendant to exit the vehicle, based on

the fact that the defendant advised the officer that he believed that he was driving with a

suspended license, which if true would be a misdemeanor. "Where a police officer has

reasonable suspicion that a particular person was involved in a felony or misdemeanor, the

officer is authorized to forcibly stop and detain that person." People v. Hollman (1992) 79

NY2d 181, 185, 581 NYS2d 619, 620.

B. Was the defendant under arrest at the time he fled the scene of his detention?

The defense maintains that the defendant cannot be convicted of resisting arrest because [*5]

Officer Welch never formerly advised him that he was under arrest. "The determination does not

turn on whether or not the suspect was told he was under arrest (Dunaway v. New York, 442 U.S.

200, 212, 99 S. Ct. 2248, 60 L.Ed.2d 824) or whether the police thought their conduct was

reasonable based on their objectives (People v. Hicks, 68 NY2d 234, 243, 508 NY2d 163,

500 NE2d 861)." People v. [Claude] Robinson (2001) 282 AD2d 75, 79, 728 NYS2d

421,424. It is established law that "In deciding whether a defendant was in custody prior to

receiving his warnings, the subjective beliefs of the defendant are not to be the determinative

factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of

any crime, would have thought had he been in the defendant's position." People v. Yukl, (1969)

25 NY2d 585, 589, 307 NYS2d 857, 859-860.[FN3] In this case the defendant was ordered out of

his vehicle by the police officer. The defendant further testified to the officer grabbing his right

arm and being rather forcibly directed to an area behind the defendant's vehicle.It would be

difficult to believe that a reasonable person would under such circumstance would think that he

was free to leave the scene. In People v. Clark (3rd Dept. 1997) 241 AD2d 710, 660 NYS2d

200 the defendant was found crawling among some desks in a school lab by the police. He then

ignored the officers, who identified themselves and demanded that the defendant surrender

himself, by trying to leave the room and by resisting attempts by the officers to handcuff him. [*6]

The court held that "His verbal and physical refusal to submit to the authority of the arresting

officers provided a legally sufficient basis from which County Court could infer that the

defendant knew he was being arrested and that he possessed the requisite intent for resisting such

arrest." Ibid at 710, 202.

It has been held that "An arrest occurs if the intrusion is of such magnitude that an individual's liberty of movement is significantly interrupted by police restraint Terry v Ohio, 392 US 1). Not every seizure constitutes an arrest (People v Chestnut, 51 NY2d 14, cert denied 449 US 1018)". People v. Jones (1st Dept. 1991) 172 AD2d 265,266, 568 NYS2d 88,89. However, "No checklist has yet been assembled that would facilitate mechanical determination of when a given set of circumstances equals an arrest." 31 NY Jur.2d Criminal Law: Procedure Section 66. The court must examine the totality of the circumstances in determining whether an arrest has taken place.[FN4] In the instant case the defendant fled just after he was told that he was about to be put into the police car. He was under arrest at that point even if the officer would have eventually released him after the issuance of an appearance ticket. Using the reasonable person standard and considering the totality of circumstances, the defendant was under arrest when he initially fled the scene of his detention. The matter had progressed beyond the point of the minimal intrusion of a normal traffic stop.

C. Was the Arrest an Authorized Arrest?

"An authorized arrest' means that there must be a legal arrest which the peace officer

made or was attempting to make when he was, in some manner, interrupted by the defendant who

intentionally sought to prevent such an arrest." CTJNY Section 67:2. In this case the officer had

reasonable cause as defined by CPL 70.10(2) to arrest the defendant for the traffic infraction of

No Plate Lamp, VTL 375(2)(A)(4) and the misdemeanor of Aggravated Unlicensed Operation in

the Third Degree, VTL 511(1)(a), based on the fact that the defendant could not produce a [*7]

license and based on the statement of the defendant relative to the suspension of his license.[FN5]

Furthermore, the defendant himself testified to running away from the scene. He further

acknowledged the efforts of the police to prevent him from fleeing. However, the defendant

argued that his actions were justified by his belief that he was in personal danger from the police.

D. Were the actions of the Defendant Justified.

Penal Law Section 35.27 states "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 or

peace officer when it would reasonably appear that the latter is a police officer or peace officer."

The only exception to that rule is when the force used by the police is excessive. 35B NY Jur

2d Criminal Law: Substantive Principles and Offenses, Section 1449. In this case the force used

by the police was non-lethal and increased in intensity in accordance with the continued

resistance by the defendant. Since the defendant was detained pursuant to an authorized arrest

and the force implemented by the officers was not excessive under the circumstances, the

resistance of the defendant was not justified.

Conclusion. [*8]

The trial evidence presented by the People was legally sufficient to establish the offense

of Resisting Arrest pursuant to P.L. Section 205.30, in that the defendant attempted to prevent an

arrest of himself, that he did so intentionally, that the arrest was made by a police officer and that

the arrest was authorized. Finally, the actions of the defendant in resisting the arrest were not

justified. Thus, the defendant's motion for a Trial Order of Dismissal, pursuant to C.P.L. Section

290.10(1)(a) is hereby denied. This constitutes the decision and order of this Court.

Dated: Webster, New York

July 22, 2009

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice. Footnotes

Footnote 1: New York Code of Rules and Regulations 22 NYCRR 200.26( c) and 22 NYCRR 200.26(d) sets out the rules for off hour arraignments. See also C.P.L 170.10 and C.P.L. 180.10 which deal with the arraignment procedure of a defendant on non-felony and felony matters

respectively, when a defendant appears at an arraignment without an attorney.

Footnote 2: Nevertheless, the Court of Appeals in People v. Johnson (2003) 1 NY3d 252, 771 NYS2d 64, 803 NE2d 385 held that the authority of an officer upon stopping a vehicle is not unlimited. For example the officer would not automatically be entitled to search a vehicle stopped for an ordinary traffic violation.

Footnote 3: Penal Law Section 205.00(2) defines custody as a "... restraint by a public servant pursuant to an authorized arrest or an order of a court".

Footnote 4: In People v. Jones, Ibid at 266, 89 the court indicated that even when the police grabbed the defendant by the arm after a short foot chase and escorted him back one block to where another officer was present with another suspect, no arrest had taken place at that point. However, the issue before the court was not whether the defendant was in fact under arrest but whether the court had probable cause to detain and arrest the defendant.

Footnote 5: See C.P.L. Section 140.10(2) which permits a police officer to arrest a person for a "petty offense" committed in the officer's presence in the geographical area of the officer's employment. A "petty offense" is defined in C.P.L. 1.20(39) as "a violation or traffic offense".

In a addition, VTL 375(2)(A)(4) carries with it the potential for a jail sentence of up to thirty (30)

days, even though said sentence is rarely, if ever, imposed.