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City Court of Rochester, November 21, 2008
APPEARANCES OF COUNSEL
Jeffrey D. Gravelle, Spencerport, for defendant. Michael C. Green, District Attorney, Rochester (Sara Valencia of counsel), for plaintiff.
{**22 Misc 3d at 756} OPINION OF THE COURT
Ellen M. Yacknin, J.
Introduction
In separate accusatory instruments, defendant Timothy C. Carroll is charged with the violation of harassment in the second degree and the misdemeanor of resisting arrest. The resisting arrest accusatory instrument accuses defendant of resisting a police officer's attempt to take him into custody following a citizen's arrest of defendant for the noncriminal violation.
As drafted, the resisting arrest charge raises critical issues regarding the complex relationships between the laws governing police arrests, citizen's arrests, and the crime of resisting arrest. Whether the People can prosecute defendant for resisting arrest under the circumstances here depends upon an analysis of these relationships.
Procedural Background
On May 19, 2008, defendant was arraigned on the charges of harassment in the second degree and resisting arrest. The harassment accusatory instrument, signed by the putative victim, alleges that defendant struck him in the eye with his closed fist. The resisting arrest accusatory instrument, signed by a police officer, alleged that defendant kicked and pushed the officer when the officer attempted to handcuff defendant after informing him that he was under arrest for harassment in the second degree.
On July 10, 2008, the court dismissed the resisting arrest charge without prejudice because, as drafted, the accusatory instrument was legally defective. Specifically, the court ruled that the accusatory instrument failed to allege that defendant's warrantless arrest was legally
[*2]authorized.[FN1] The court then scheduled a September 18, 2008 bench trial on the harassment charge.{**22 Misc 3d at 757}
On the trial date, however, the People filed a second accusatory instrument charging defendant with resisting arrest. Unlike the first document, the new accusatory instrument asserts that the alleged harassment victim had made a citizen's arrest of defendant.
Because the new resisting arrest charge was transactional to the harassment charge, the bench trial on the latter charge did not proceed. Instead, the court arraigned defendant on the refiled resisting arrest charge and gave defendant an opportunity to file motions.
Defendant filed an omnibus motion on October 10, 2008, and the People responded on October 15, 2008. On that date, the court advised counsel of its concerns regarding the sufficiency of the second resisting arrest charge. As a result, the court gave both parties an opportunity to address the court's concerns if they wished, and granted defendant's request for a probable cause hearing. The court scheduled additional argument and the probable cause hearing for November 21, 2008.
Legal Discussion
I. Upon His Arrest by a Citizen for a Noncriminal Violation that Occurred Outside the Police Officer's Presence, Defendant Cannot Lawfully be Prosecuted for Resisting Arrest under Penal Law

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