People v. Arbeiter
650 N.Y.S.2d 915, 169 Misc. 2d 771, 1996 N.Y. Misc. LEXIS 439 (1996)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under New York Penal Law § 205.30, passive conduct, such as remaining seated and refusing to cooperate during an arrest, does not constitute the crime of resisting arrest because it does not involve an affirmative act to 'prevent' the arrest.
Facts:
- Members of the Irish Lesbian and Gay Organization participated in an unauthorized 'protest' parade on St. Patrick’s Day on Fifth Avenue in New York City after the city refused to issue them a parade permit.
- The marchers gathered at the intersection of Fifth Avenue and 42nd Street, obstructing vehicular traffic for approximately an hour and a half.
- Police issued a lawful order for the marchers to disperse, which they refused to obey.
- As police began making arrests for disorderly conduct, some of the defendants passively resisted.
- This passive resistance consisted of remaining seated on the pavement and refusing to get up.
- This inaction required police officers to physically carry these defendants to police vans to complete the arrests.
Procedural Posture:
- Ninety defendants were charged in New York City Criminal Court with disorderly conduct; some were also charged with resisting arrest.
- The defendants filed motions to dismiss all charges in the interest of justice.
- The Criminal Court, acting as the court of first instance, granted the defendants' motions and dismissed all charges.
- The People (the prosecution) appealed the dismissals to the Appellate Term of the Supreme Court, First Department, the intermediate appellate court for this matter.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a defendant's passive conduct of remaining seated and refusing to cooperate with police officers during an arrest, thereby requiring the officers to physically carry the defendant, constitute the crime of resisting arrest under New York Penal Law § 205.30?
Opinions:
Majority - Per Curiam
No. Passive conduct, such as remaining seated, does not constitute resisting arrest under Penal Law § 205.30. The statute requires an intentional act to 'prevent' or 'attempt to prevent' an arrest, which implies creating an insurmountable obstacle or impediment, not merely delaying the inevitable through inaction. The court reasoned that the ordinary meaning of 'prevent' does not encompass the type of passivity the defendants displayed. Furthermore, the court distinguished the current statute from its predecessor (former Penal Law § 1851), which explicitly criminalized conduct that 'resists, delays or obstructs' an officer. The legislature's choice to omit the words 'delay' and 'obstruct' from the current statute indicates an intent to narrow the scope of the crime to only cover affirmative acts of resistance. On a separate matter, the court held that the trial court's disagreement with the city's political decision to deny a parade permit was not a compelling reason to dismiss the disorderly conduct charges in the interest of justice.
Dissenting - Ostrau, P. J.
Yes. Passive resistance is sufficient to constitute the crime of resisting arrest. The dissent argues that the majority ignores binding precedent from People v. Williams, which held under the former statute that identical conduct constituted resisting arrest. The dissent contends that the revision to Penal Law § 205.30 was merely a 'change in phraseology' and not intended to narrow the crime's scope. The word 'prevent' should be interpreted broadly to include actions that 'frustrate' or 'hinder' an arrest. Furthermore, since the Penal Law defines 'conduct' as 'an act or omission,' a defendant's omission (refusing to move) combined with the intent to prevent the arrest should satisfy the statute. The dissent warns that the majority's holding will inhibit police officers in the performance of their duties.
Analysis:
This decision significantly narrows the scope of New York's resisting arrest statute by drawing a clear line between active resistance and passive non-compliance. It establishes that mere inaction, even if it makes an arrest more difficult for police, does not meet the statutory requirement of 'preventing' an arrest. This holding provides greater protection for individuals engaged in civil disobedience or protest who use passive resistance as a tactic. The case effectively limits the application of a prior Court of Appeals decision, People v. Williams, by highlighting the material differences between the former and current resisting arrest statutes, thereby setting a new precedent for how § 205.30 is to be interpreted.
