People v. Thomas

239 A.D.2d 246, 567 N.Y.S.2d 901, 1997 N.Y. App. Div. LEXIS 5180

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1997
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered April 25, 1994, convicting defendant, after a jury trial, of resisting arrest, and sentencing him to a prison term of 1 year, unanimously affirmed.

Defendant’s challenges to the sufficiency of the evidence are unpreserved for appellate review because he failed to move to dismiss the resisting arrest charge on those specific grounds (People v Gray, 86 NY2d 10, 19-20), and because such issues may not be preserved by means of a motion to set aside the verdict (People v Padro, 75 NY2d 820). Were we to consider these claims in the interest of justice, we would find them to be without merit. Defendant was properly convicted of resisting arrest notwithstanding that he was acquitted of all other charges (People v Martin, 222 AD2d 528, lv denied 88 NY2d 850; People v Mayi, 198 AD2d 444) and was never charged with the particular offenses for which he was being arrested at the time he resisted arrest (Matter of James T., 189 AD2d 580). There was ample evidence that defendant resisted an authorized arrest. The first officer present, who was clearly in possession of probable cause, was not required to communicate anything to his fellow officers beyond a simple direction to arrest since "an arresting officer is deemed to act with probable cause when making an arrest at the direction of another law enforcement officer who has the requisite probable cause” (People v Rosario, 78 NY2d 583, 588, cert denied 502 US 1109). Concur—Milonas, J. P., Nardelli, Williams and Andrias, JJ.