Matter of Victoria W.

[*1] Matter of Victoria W. 2012 NY Slip Op 50809(U) Decided on May 7, 2012 Family Court, Kings County Elkins, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2012
Family Court, Kings County

In the Matter of Victoria W. and Karen B. Persons Alleged to be Juvenile Delinquents, Respondents.



D-29783-11



In VW

For the Presentment Agency:

Michael Cardozo, Corporation Counsel

by: Pia Wood, Esq.

For the Respondent:

Steven Banks, Esq.

The Legal Aid Society

Juvenile Rights Practice

by: Briana Fedele, Esq.

In KB

For the Presentment Agency:

Michael Cardozo, Corporation Counsel

by: Emily J. Rodriguez, Esq

For the Respondent:

Steven Banks, Esq.

The Legal Aid Society

Juvenile Rights Practice

by: Nora VanDuzen, Esq.

Lee H. Elkins, J.

In each of these cases the respondent is charged with resisting arrest, under Penal Law § 205.30. The case of W. involves an incident in a middle school, where the respondent allegedly resisted arrest by school safety agents. The case of B. involves an incident where the respondent was being escorted by police officers to an ambulance following a call to assist her as an emotionally disturbed person. In each case after the presentment agency rested the respondent moved to dismiss the resisting arrest charge for failure to establish the mental culpability required for the offense. In each case, after viewing the evidence most favorably to the presentment agency, the court finds the evidence insufficient as a matter of law to establish that the respondent knew or had reason to know that she was being arrested, and therefore, to establish the specific intent to resist a lawful arrest. (People v. Saitta, 79 AD2d 994, 994-995 [2d Dept 1981]) The court's reasons for the dismissals are as follows.

Statement of Facts

The VW. Case

Respondent W was arrested by school safety agents in the cafeteria of her school. At 10:50 a.m. on September 26, 2011, school safety agents responded to a fight in the cafeteria at Wingate Campus. There were several hundred students in the cafeteria at the time and the scene was chaotic. The agents were required to push their way through the students crowded around those fighting. School Safety Agent Kearns testified that as she pushed her way through the crowd, she felt a push to her side from behind. She turned around to see the respondent "in a fighting stance." W. was not one of the students fighting. School Safety Agent Lloyd, also pushing her way through the crowd saw W. push Agent Kearns on her side, and heard the respondent say "don't push me." She did not see W. in a fighting stance. Both agents testified that W. then climbed onto a cafeteria table, yelled, cursed, and refused to get down when asked by the agents. A third School Safety Agent Proffet, arrived. After instructing W to get off of the table a few times, agent Lloyd grabbed W's right arm as Agent Kearns grabbed her left arm, and together with Agent Proffet, they pulled W. off of the table. W. was yelling "get off me," and cursing. The agents handcuffed W., removed her from the cafeteria, and escorted her to the school security room, where she was arrested for obstructing governmental administration (PL § 195.05) and resisting arrest (PL § 205.30). When asked on direct why the agents grabbed W.'s arms Agent Lloyd testified "Because she was creating a scene. She was irate. She wasn't listening. And, at that point, she wasn't listening and needed to be handcuffed." When asked why W. needed to be handcuffed, the agent answered: "Because she was... she pushed another agent. She was irate in the cafeteria. She was - - wasn't following commands so that was the next step to try to get the situation under control."

The KB. Case

At approximately 3:30 am on August 18, 2011, New York City Police Officer Marcelo Salazar and his female partner responded to a 911 call regarding an emotionally disturbed person inside an apartment. Officer Salazar entered the apartment and spoke with KB's mother and sister. [*2]Thirteen year old KB was in her room and appeared extremely agitated. KB's mother explained that KB was not taking her prescribed medication, had not slept in several days and was suffering from PTSD after having been sexually assaulted. Officer Salazar following the procedure for an emotionally disturbed person, called an ambulance to the scene. An ambulance operated by Emergency Medical Services (EMS) - not the Emergency Services Unit (ESU) of the police department, arrived. After speaking with KB, EMS informed the officers that KB must go to the hospital. KB gathered her items and walked out of the apartment, down the common stairs and out of the building toward the ambulance parked near the curb. As she approached the ambulance, KB took one step to the side and asked why she had to go to the hospital and how long she would have to stay. As KB stepped away Officer Salazar grabbed her by both arms, pushing her from behind with his body and KB stumbled forward. KB's mother physically placed herself in between the Officer Salazar and KB. KB then ran toward a metal gate and held onto it. Officer Salazar approached KB from behind, and put his weight against her body pressing her body into the gate while she was facing it. As Officer Salazar reached to grab her left arm to pull her from the gate, KB bit Salazar's arm, leaving a mark. Officer Salazar grabbed KB's hair and pulled off a weave which KB had glued into her hair earlier. This caused KB to release Officer Salazar's arm. Officer Salazar handcuffed KB with the assistance of his partner, lifted her up and placed her in the ambulance. The ambulance took KB to the hospital. Officer Salazar also went to a hospital, where he was prescribed medication to prevent HIV transmission as a precaution. Officer Salazar was unable to work for one month due to fatigue, nausea, and vomiting caused by medication he was prescribed.

Conclusions of Law

Under New York Penal Law section 205.30, 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" (PL § 205.30). To justify a charge of resisting arrest, the attendant circumstances must support an inference that the person was aware she would be arrested. (See, e.g., People v. Gray, 189 AD2d 922 (3d Dept 1993); People v. Urena, 199 AD2d 443 (2d Dept 1993)) Where the circumstances are ambiguous, there must be "an indication ... given that an arrest is to be made," because an individual who is unaware that she is being arrested cannot "intentionally resist arrest" (People v. Saitta, supra, 79 AD2d at pp 994-995) (reversing a conviction for resisting arrest where the defendant was not informed of the reason for the officer's presence or that he was being placed under arrest, under circumstances where the defendant had no reason to know that he was being arrested); In re. B., 45 AD2d 724 (2d Dept. 1974) (juvenile did not resist arrest by running from the police who were not in uniform and did not announce an intent to arrest )).

The Criminal Procedure Law requires that an officer "inform [an individual of] his authority and purpose and of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical" (CPL § 140.15). Where the person's knowledge of impending arrest may be inferred from the surrounding facts and circumstances, an officer need not "specifically inform" the person that she is to be arrested in order to establish an intent to resist arrest (People v. Galvin, 253 AD2d 437 [2d Dept 1998]). Therefore, for example, [*3]where a juvenile attempts to assault a school safety agent, the circumstances support an inference that the student knows he is being arrested and resists arrest by "flailing and kicking," even though the safety agent did not specifically announce that the juvenile was under arrest. (In re Davaun M., 44 AD3d 420 [1st Dept 2007]). In the case of a juvenile, an officer may only make an authorized arrest if the juvenile has committed an act which, if committed by an adult, would constitute a misdemeanor or a felony. (FCA §§ 301.2(1), 305.2(2); PL § 10(6); In Matter of Victor M., 9 NY3d 84, 87 [2007]). Where the delinquency petition fails to allege any facts in support of probable cause that the juvenile committed an offense for which a juvenile may be arrested, it cannot support a charge of resisting arrest. (In re. Iyona G., 60 AD3d 1403, 1404 [4th Dept 2009] (dismissing a juvenile delinquency petition alleging resisting arrest, where the juvenile was arrested for "fighting," which amounted only to the violation of disorderly conduct.))

VW's case

School safety agents are unarmed employees of the New York City Police Department School Safety Division, designatedas peace officers (CPL § 2.10(27)). As such, a school safety agent "may take a child under the age of sixteen into custody without a warrant in cases in which he may arrest a person for a crime under article one hundred forty of the criminal procedure law."(Family Court Act § 305.2(2))

W. pushed school safety agent Kearns in her side as Kearns attempted to push past W. to get to the fight. A juvenile who pushes a school safety agent certainly should anticipate that she will be subject to discipline. However, it is not certain that she has reason to know she will be arrested.[FN1] The New York City Department of Education provides a range of disciplinary action for a student in grades six through twelve who is "being insubordinate; defying or disobeying the lawful authority of school personnel or school safety agents" (see Citywide Standards of Intervention and Discipline Measures: The Discipline Code and Bill of Student Rights and Responsibilities, K-12, NYC Department of Education, Level 3, Infraction B21 [Effective September 2011]), or who shoves, pushes or engages in other similar physical behavior. (Id. Infraction B24) The Discipline Code states that a Level 3 infraction such as defying the lawful [*4]authority of a school safety agent may result in a range of disciplinary responses, from being removed from class by a teacher, admonished by a teacher or principal, to in-school suspension or most severely a superintendent's suspension of from six to ten school days.

Within the "Bill of Student Rights," the Department of Education states that students have the right to be provided with the Discipline Code and rules and regulations of the school and to know what is appropriate behavior and what behaviors may result in disciplinary actions. (Id. at 9.) Additionally, the Code states that school officials are responsible for sharing the information contained in the Code with students, staff and parents. (Id.) Thus it would be reasonable for a student who disobeys a school safety agent to expect school discipline which ranges from a reprimand by a teacher or principal to a superintendent's suspension for up to 10 days, rather than an arrest.[FN2]

Appellate courts hold that pushing an officer amounts to the violation of harassment (PL § 240.26(1); see, e.g., People v. Collins, 178 AD2d 789 (3d Dept. 1991)(upholding a conviction for resisting arrest of an adult who attempted to enter his house and committed harassment by pushing an officer trying to prevent him from leaving the scene of an argument with his wife.); and see, People v. Urena, supra, 199 AD2d 443 (2d Dept 1993)) Although there is no requirement that a person in order to resist arrest must know the specific offense for which she is being arrested (See, e.g., People v. Caidor, 187 AD2d 441 (2d Dept 1992)), where a juvenile's conduct: occurs in school; is subject to the school disciplinary code; and may not amount to an offense for which juveniles are subject to arrest, the circumstances are such as to create ambiguity whether an arrest is imminent. Under such circumstances, it is reasonable to expect an officer to inform the juvenile that he or she is to be arrested, in order to support an inference that the juvenile intended to resist an arrest. [*5]

This conclusion is reinforced by police department protocols for arrests occurring within a school. The NYPD Patrol Guide requires "uniformed members of service," when "affecting an arrest inside a school facility" to "inform (the) student of authority and cause, unless physical resistance, flight or other factors render such procedure impractical." (NYPD Patrol Guide, Procedure No. 215-13, Handcuffing Students Arrested Within School Facilities) In the court's view, W's act of standing on a table would not have prevented the agents from announcing an intent to arrest W.

W.'s act in pushing SSA Kearns in response to being pushed may have been harassment, which is not an offense for which the respondent was subject to arrest. Crediting the testimony of SSA Kearns over SSA Lloyd, the same may be said of the respondent's "fighting stance." (Cf., e.g., People v. Todaro, 26 NY2d 325 (1970)). Unlike Matter of Davaun M., (supra, 44 AD3d 420) there is no evidence that the respondent here attempted to assault SSA Kearns. When W climbed onto and refused to get down from a cafeteria table, she had no reason to believe that she was to be arrested in the absence of any statement by the school safety officers of their intent to arrest her. Consequently, W's refusal to obey the orders of the school safety agents is not sufficient evidence of her intent to resist an arrest.[FN3]

KB.'s case

It is clear that while KB may have been in "custody," she was not under arrest when the officers escorted her from her home to the waiting ambulance. The NYPD Patrol Guide permits an officer to take an emotionally disturbed person "into custody" when "unarmed, not violent and willing to leave voluntarily." (NYPD Patrol Guide 2005 Manual, 216-05: Mentally Ill or Emotionally Disturbed Persons) The Patrol Guide states that to "safeguard a mentally ill or emotionally disturbed person who does not voluntarily seek medical assistance" a police officer may use necessary force "to prevent serious injury or death," "if such person is a danger to himself or others." (Id.) The Patrol Guide limits the use of physical force "only to the extent necessary to restrain the subject until delivered to a hospital or detention facility." (Id.) Where the person is unwilling to be escorted, but does not present an immediate threat of serious physical injury or death to himself or others, the officer must attempt to isolate and contain the person "while maintaining a zone of safety until arrival of a patrol supervisor and Emergency Service Unit (ESU) personnel." (Id.) The Guide recommends a perimeter with a minimum distance of 20 feet, which the officers should "attempt to maintain" if the person "does not [*6]remain stationary." (Id.) The Guide specifically admonishes the patrol officer not to "attempt to take (such nonviolent person) into custody without the specific direction of a supervisor." (Id.)

When KB took a step away from the ambulance that would transport her to a hospital, she was expressing her reluctance to go to the hospital but was not otherwise threatening anyone. In response the police officer grabbed KB by both arms and pushed KB from behind with his body. After her mother intervened, KB ran to a gate and held onto it. Her actions did not warrant an arrest under the patrol guidelines. At that point, KB was not dangerous but was unwilling to be transported to the hospital. The proper response was to establish the required perimeter and call for ESU and a supervisor. Instead, the officer approached KB and pressed her into the gate while grabbing her arm. Obviously, KB physically resisted Officer Salazar when she bit him; however, the circumstances were not such as to cause her to believe that she was being arrested.

Because neither respondent was made aware that she was to be arrested, before she committed the acts alleged to constitute resisting arrest, and because the circumstances were not such as to give rise to an inference that the respondent knew she was to be arrested, the evidence in each case is insufficient as a matter of law to establish an intent to resist arrest. The resisting arrest charge is dismissed in each case.

The foregoing constitutes the opinion and decision of the court.

Dated: May 7, 2012_____________________________

Lee H. Elkins, JFC Footnotes

Footnote 1: The NYPD Patrol Guide 215-13 governing the arrest of a student within a New York City school states: "Whether probable cause to arrest exists will be determined by the Police Department. While the desires of school personnel (principals, teachers, school safety officers, etc.) may be considered by the uniformed member of the service in determining whether an arrest is warranted, the views of school personnel are NOT controlling." If there is a disagreement between the police officer and school officials, a patrol supervisor is called in to verify that probable cause exists. The Patrol Supervisor then advises the school personnel that an arrest will be made. "Any objecting school administrators within the Board of Education facilities should be advised to contact their Legal Division. NOTE: Under no circumstances will school personnel be permitted to interfere with an arrest the patrol supervisor has deemed warranted."

Footnote 2: According to the New York Civil Liberties Union (NYCLU), NYPD data on school-based arrests and summonses show that there were 279 arrests and 532 summonses issued by School Safety Officers (SSAs) over a three month period (55 school days) in New York City public schools between October 1 and December 31, 2011. (NYCLU, SSA Reporting on Arrests and Summonses, http://www.nyclu.org/files/releases/School%20Safety%20Fact%20Sheet.pdf [accessed April 4, 2012]). 26.2% of the arrests occurred in Brooklyn schools. Of those arrested, 18.6% were between the ages of 11-14 years old, 73.5% were between the ages of 15-18 years old, and 7.9% were 19 years old or older. Disorderly conduct accounted for 63% of the summonses issued. In addition, SSAs were involved in 1475 non-criminal incidents during the same period. According to the NYCLU : "Though the data does not describe the facts of the incidents, when viewed against the backdrop of the many accounts of student arrests for offenses like writing on a desk, cursing, and pushing or shoving, all indicators point to police personnel becoming involved in disciplinary infractions that should be handled by educators." http://www.nyclu.org/news/new-nypd-data-shows-racial-disparities-nyc-school-arrests [accessed May 6, 2012]. See, generally, Mukherjee, Criminalizing The Classroom: The Over-Policing of New York City Schools, http://www.nyclu.org/publications/report-criminalizing-classroom-2007.

Footnote 3: The court's denial of the motion to dismiss the Obstructing Governmental Administration (PL § 195.05) charge is not inconsistent with the reasoning herein. As in People v. Saitta, 79 AD2d 994, 994-995 [2d Dept 1981], where the defendant was convicted of the underlying offense to which the officers responded - endangering the welfare of a child - the officers here were engaged in a civil function of breaking up a school fight. The respondent interfered with that function when she pushed back against SSA Kearns, which act was clearly intentional and obstructed Kearns' ability to respond to the fight. It does not follow, however, that the respondent knew those circumstances would give rise to an arrest as opposed to school disciplinary action.