People v O'Connell

[*1] People v O'Connell 2016 NY Slip Op 50823(U) Decided on May 25, 2016 Supreme Court, New York County Merchan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2016
Supreme Court, New York County

The People of the State of New York,

against

William O'Connell, Defendant.



2327-2013



For the Defendant:

SEYMOUR W. JAMES

Attorney-In-Charge, The Legal Aid Society

By: Caroline Ng, Esq.

Laura Waters, Esq.

For the People:

CYRUS R. VANCE, JR.

District Attorney, New York County

By: Lisa Franchini, Esq.
Juan M. Merchan, J.

On or about June 5, 2013, a Grand Jury accused the Defendant, William O'Connell, of Criminal Possession of a Weapon in the Third Degree in violation of Penal Law § 265.02(1); Criminal Possession of a Weapon in the Fourth Degree in violation of Penal Law § 265.01(2); Harassment in the Second Degree in violation of Penal Law § 240.26(1); and Resisting Arrest in violation of Penal Law § 205.30. The charges stemmed from an incident between the Defendant and his sister which occurred on May 22, 2013. On March 22, 2016, a jury convicted Defendant of second-degree harassment and resisting arrest and acquitted him of the weapons possession charges.

Defendant now moves pursuant to Criminal Procedure Law § 330.30(1), for an order setting aside his conviction for Resisting Arrest. He argues that the People failed to prove beyond a reasonable doubt that he intentionally prevented or attempted to prevent a police officer from effecting an authorized arrest of himself. Specifically, Defendant argues that the evidence presented at trial established that Mr. O'Connell's arrest had already been fully effected by the time he attempted to break free from police custody. Defendant therefore asserts that the appropriate charge, under the circumstances, would have been Attempted Escape in the Third Degree, as a person cannot [*2]legally or logically attempt to prevent something that has already happened, i.e. his arrest.

The People argue that whether Defendant is guilty of resisting arrest is a question of fact and a rational trier of fact could have found, as the jury did in this case, that Defendant did resist arrest.

For the reasons which follow, Defendant's motion is granted.

Evidence at Trial

On May 22, 2013, at approximately 3:00 p.m., Sheila O'Connell was released from a brief stay in a hospital. She was brought home by her daughter, Lorraine Ramirez, her son-in-law, Jose Ramirez, and the Defendant's daughter, Raquel.[FN1] Mrs. O'Connell lived at 446 West 26th Street with the Defendant, who is her son. Defendant was present inside the apartment when his mother and other family members arrived.

Upon arriving, Mrs. O'Connell noticed that her coffee maker was missing. Because Defendant had a history of stealing household items to support his drug habit, Mrs. O'Connell assumed that the Defendant had stolen the coffee maker. She informed the Defendant that she wished to speak with him about the missing coffee maker and he responded angrily, cursing, throwing and kicking furnishings and other objects around the livingroom. To diffuse the situation, Mrs. O'Connell's daughter, Mrs. Ramirez, suggested that they leave the apartment with Defendant's daughter, Raquel, to get something to eat. As the three women left, the Defendant shouted "That's right, run away." Once outside the apartment, Mrs. O'Connell attempted to lock the apartment door. As she inserted the key into the doorlock, Defendant suddenly and forcefully opened the door, pulling his mother partially back into the apartment. Defendant then stepped out of the apartment, approached Mrs. Ramirez, and shoved her. Defendant raised his fists toward his sister and yelled, "I will give you the wrong brother died." This was a reference to a long-running feud between Defendant and his sister regarding the death of a male sibling.

Defendant then ripped his shirt, banged on his chest, and threatened to stab Mrs. Ramirez in the head. As Mrs. Ramirez raised her hands to defend herself, Mrs. O'Connell stepped in-between Defendant and his sister and warned Defendant not to hit his sister. The three women then boarded an elevator, leaving the Defendant standing in the hallway. As the elevator began its descent to the lobby, the women could hear the Defendant banging on the elevator doors while shouting repeatedly: "I'll give you the wrong brother died, I'll show you." The three women went to a nearby restaurant where they shared a meal. Sometime after the meal but before returning to the apartment building, Mrs. Ramirez called 911 and reported the incident to the police.

Police Officers Sean Carroll and his partner, Officer Kimberly Peralta, were at that time conducting a "vertical" patrol in a building across the street. They received the radio run which came over as a family dispute, possibly involving a knife. The officers crossed the street and walked in the direction of 446 West 26th Street. They observed people standing and pointing toward the entrance to the building, where the Defendant was standing. The Defendant was visibly upset, yelling and gesturing with his hands at a woman the officers later identified as Mrs. Ramirez. As the officers approached, the Defendant entered the lobby of the building. The officers and Mrs. Ramirez followed him inside.

The Defendant was standing near the elevator, still directing obscenities at his sister, when [*3]he was stopped by the police officers. Officer Carroll asked Defendant if he was in possession of any weapons, to which the Defendant responded that he was carrying a knife. Defendant then produced a broken ceramic kitchen knife from his waistband, which he relinquished to Officer Carroll. Although the Defendant remained agitated, he nevertheless followed the directions given by Officer Carroll. Meanwhile, Officer Peralta spoke with Mrs. Ramirez who was standing a few feet away. The Defendant was then placed under arrest. Officer Carroll cuffed the Defendant's hands behind his back and led him to a chair, where he was asked to sit. Officer Peralta led Mrs. Ramirez out of the lobby, and then went to retrieve her police vehicle which was parked a short distance away. Officer Peralta intended to transport the Defendant back to the precinct in the police vehicle.

While awaiting the return of Officer Peralta with the police vehicle, Officer Carroll attempted to calm the Defendant by engaging him in conversation. However, the Defendant remained agitated. While seated, he threatened to bang his head against a garbage disposal located on a nearby wall. Within a few moments, he carried through with his threat and actually hit his head against the disposal. He then stood suddenly and with hands cuffed behind his back, managed to lift and whip the chair he had been sitting on toward Officer Carroll's face. Defendant then turned and ran toward a nearby exit. Officer Carroll caught the chair in front of his face and used it to knock the Defendant to the ground. A brief struggle ensued during which Officer Carroll attempted unsuccessfully to pepper spray the Defendant. The Officer radioed for assistance and the Defendant was ultimately brought under control.

Officer Peralta heard the radio run from Officer Carroll for assistance and ran back to the building where other police vehicles had arrived. She observed Officer Carroll, still winded from his brief struggle with the Defendant, bleeding from the head, escorting Defendant out of the building. Defendant was placed in a patrol car and initially driven to Bellevue Hospital before ultimately being taken to the precinct. Later that day, Officer Carroll vouchered the knife he recovered from the Defendant.

Conclusions of Law

Pursuant to CPL § 330.30(1), a defendant may move after verdict but prior to sentencing, to set aside or modify a verdict on "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." CPL § 330.30(1); see also People v. Medina, 11 AD3d 331 (1st Dept. 2004). Defendant's claim of legal insufficiency of the evidence presented at trial to support his conviction for Resisting Arrest falls within the grounds covered by CPL §330.30. People v. Danielson, 9 NY3d 342, 348 (2007).

In reviewing a legal sufficiency claim, this Court must determine "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the [fact-finder] on the basis of the evidence at trial." People v. Mateo, 2 NY3d 383 (2004), quoting People v. Bleakley, 69 NY2d 490, 495 (1987); see also People v. Contes, 60 NY2d 620, 621 (1983). In making this assessment, a reviewing court must view all the evidence in the light most favorable to the People. Mateo, 2 NY3d at 409; Contes, 60 NY2d at 621.

The specific issue for this Court to resolve is whether under the facts and circumstances of this case, the Defendant's conduct in hitting his head against the garbage disposal, throwing a chair at Officer Carroll, attempting to flee through an exit door and wrestling with the Officer constitutes [*4]the crime of Resisting Arrest or as Defendant argues, Attempted Escape, a crime for which he was not charged.

This Court finds that in handcuffing Defendant and having him sit in a chair guarded by Officer Carroll, while they waited for Officer Ramirez to return with a police vehicle, constituted a full-fledged arrest. Because Defendant was under arrest prior to engaging in the above-described conduct, his behavior cannot constitute the crime of Resisting Arrest.

Penal Law § 205.30 provides that, "[a] person commits resisting arrest when he intentionally prevents or attempts to prevent a police officer . . . from effecting an authorized arrest.'" People v. Finch, 23 NY3d 408, 416 (2014), citing People v. Jensen, 86 NY2d 248, 253 (1995). "An arrest is authorized' if, but only if, it was premised on probable cause.'" Finch, 23 NY3d at 416. To effect an arrest means to take a person into custody, that is, by "restraint by a public servant pursuant to an authorized arrest." Penal Law § 205.00(2); see also People v. Hasenflue, 169 Misc 2d 766, 768 (Sup. Ct. Ulster Co. 1996). A defendant's knowledge that he is being arrested can be inferred from the attendant facts and circumstances. People v. Krut, 133 AD3d 781 (2d Dept. 2015); People v. Galvin, 253 AD2d 437 (2d Dept. 1998).

"Normal arrest procedure involves a series of steps which include advising the person of the reason for arrest, a pat-down for weapons, handcuffing the defendant and escorting the defendant to the police car to be transported.'" However, the actual arrest itself "is complete when a defendant is taken into custody, . . . and [e]vents that occur after the arrest are not part of the arrest itself." People v. Cross, 51 Misc 3d 1210(A), *6 (Crim. Ct. Bx. Co. Mar. 31, 2016); see also People v. Elliott, 41 Misc 3d 1228(A), *5 (Crim Ct., NY County 2013). Thus, by contrast, "[r]esisting arrest involves conduct occurring at the time of the arrest itself; escape [on the other hand] involves conduct occurring subsequent to the arrest, when the person has already been taken into custody." People v. Becoats, 88 AD2d 766 (4th Dept. 1982). "The arrest is distinct from the subsequent decision to transport[] [an arrestee] to the police station and charg[ing him] with a crime.'" Elliott, 41 Misc 3d 1228(A), *5 (quoting People v. Chestnut, 51 NY2d 14, 20 [1980]).

Here, the Defendant does not contend that his arrest was unauthorized or lacking in probable cause. Rather, he argues that his conduct amounted to an attempted escape because he was already in police custody when he attempted to run away from Officer Carroll.

Viewing the evidence in the light most favorable to the People, see Contes, 60 NY2d at 621, this Court finds that the evidence was not legally sufficient to establish that the Defendant resisted arrest. Police Officer Caroll testified that the Defendant was placed under arrest after the officers spoke to Mrs. Ramirez and recovered the knife from the Defendant's person. The Defendant obeyed the officer's directives and allowed them to handcuff him behind his back. The fact that Officer Peralta left a visibly agitated prisoner with her partner to retrieve their patrol car evinces that the two officers believed that Defendant was sufficiently restrained; i.e., in custody.

Thus, this Court finds that the intrusion upon Defendant's liberty at this juncture constituted a completed arrest because he was safely in police custody. Cf. Cross, 51 Misc 3d 1210(A), *6 (the "defendant's actions of kicking his legs after he was already placed under arrest in the transport van . . . constituted . . . a separate offense."); People v. Joseph, 124 AD3d 437, 438 (1st Dept. 2015) (conviction for escape affirmed where the defendant, just before being put into the patrol car, stated, "I'm not going to jail," broke free, and ran away from the police officers); People v. Boylan, 98 AD2d 779 (2d Dept. 1983) (the defendant was in police custody for arrest purposes, despite having [*5]his handcuffs removed and not having been transported to the precinct because he agreed to cooperate with the police).

Contrary to the People's position, this is not a case where the Defendant prevented or attempted to prevent the police from placing him in custody; i.e., restraining him. See, e.g., Finch, 23 NY3d at 411 (upon being told he was under arrest, the defendant stated, "You can't arrest me," tried to walk away, and made his "handcuffing difficult by pressing his arm against the hood of a car with his body."); In re Luis L., 58 AD3d 543, 544 (1st Dept. 2009) (the defendant's "struggle to avoid being handcuffed constituted resisting arrest"); People v. Lee, 275 AD2d 995, 996 (4th Dept. 2000) ("The evidence establishes that the officer attempted to arrest defendant and take him into custody, but was unsuccessful"); People v. Caffey, 134 AD2d 923 (4th Dept. 1987) (charge of resisting arrest upheld where the "[d]efendant's conduct in avoiding the officer's grasp occurred at the time of arrest and defendant was not sufficiently restrained to have been in custody").

Accordingly, Defendant's conduct subsequent to his being searched and restrained by police - and therefore in custody, could not have constituted resisting arrest, but may have constituted an altogether different offense.

Therefore, viewed in the light most favorable to the People, the evidence was not legally sufficient to support the jury's verdict of guilty on the count of Resisting Arrest. See Bleakley, 69 NY2d at 495.

Accordingly, Defendant's CPL § 330.30 motion is hereby granted.

The above constitutes the decision and order of this Court.

Dated: May 25, 2016

New York, New York

Juan M. Merchan

Judge of the Court of Claims

Acting Justice - Supreme Court Footnotes

Footnote 1:Mrs. Ramirez testified that although her niece's true name is Raquel, she knows her as Rachel. However, Mrs. Ramirez' niece is referred to as Raquel throughout the hearing transcript.