People v. Cox

KINGS COUNTY
Criminal Practice

New York Law Journal

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Justice John Hecht

Prosecutors sought to charge Cox with resisting arrest, but failed to charge the offense properly as they failed to plead the arrest with which he interfered was supported by probable cause. The court noted prosecutors' attempt to charge resisting arrest by another name—obstructing governmental administration—did not change the conclusion. It was alleged Cox yelled, screamed and swung his arms at officers to prevent them from placing another individual under arrest. He was subsequently charged with resisting arrest for allegedly flailing his arms to prevent officers from handcuffing him. Cox moved for dismissal, arguing the charges were facially insufficient. The court agreed, noting by failing to allege the arrest of the third party was lawful, prosecutors failed to allege that Cox's attempt to stop it was not. It noted if Cox committed no offense when he resisted the arrest of the third party, it followed that his resisting his own arrest was not illegal. Yet the court stated as the accusatory instrument failed to allege the arrest of the third party with which Cox interfered was lawful, all charges were insufficiently pleaded. Hence, Cox's motion to dismiss for facial insufficiency was granted.

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