Appeal from judgments of the District Court of Suffolk County, First District (Lawrence Donohue, J.), rendered December 2, 2004. The judgments convicted defendant, upon a jury verdict, of disorderly conduct, harassment in the second degree and resisting arrest.

Judgments of conviction unanimously affirmed.

In or about September 2002, defendant was charged, insofar as relevant to this appeal, by separate accusatory instruments, with disorderly conduct (Penal Law § 240.70 [1]), harassment in the second degree (Penal Law § 240.60 [1]) and resisting arrest (Penal Law § 205.30). On appeal, defendant contends that the trial court improperly (1) denied his motions to dismiss all of the charges because the People failed to show that there was probable cause to believe that he committed a crime, and (2) denied his right to have the jury determine whether there was probable cause to believe that he had committed a crime in regard to the resisting arrest charge.

Contrary to defendant's contention, the trial court properly denied his pre-trial motion to dismiss the charges. A review of the hearing transcript indicates that, after arriving at a location in response to a domestic violence call, a police officer was told by defendant's sister-in-law that she had seen defendant punch her sister. She then pointed out defendant, who was driving by in a vehicle, to the officer. After defendant stopped his vehicle, he exited, yelled at the officer and pushed the officer in his chest. The officer decided to arrest defendant for his actions, but defendant screamed and flailed his arms and elbows and would not allow his hands to be placed in handcuffs. Once defendant was handcuffed, and taken to the precinct, he refused to remove the drawstring from his sweat pants, and hit another officer about his face and body. The [*2]foregoing hearing testimony clearly established that the police had a reasonable suspicion to stop defendant based on the statements of his sister-in-law (see e.g. People v McIntosh, 96 NY2d 521, 529 [2001]; People v Holliman, 79 NY2d 181 [1992]; People v DeBour, 40 NY2d 210 [1976]), and had probable cause to arrest defendant for disorderly conduct, resisting arrest, and harassment in the second degree based on his own actions. We note that hearsay is allowed at pre-trial hearings (see CPL 710.60 [4]).

The legality of Fourth Amendment search and seizure issues, both as to facts and law, is to be determined by the court, not the jury (see e.g. People v Murphy, 284 AD2d 120 [2001]; People Conklin, 145 AD2d 20 [1989]; People v Wright, 168 Misc 2d 787 [1996]). As the Supreme Court, Kings County, noted in People v Wright (id. at 789), "Fourth Amendment search and seizure issues are not submitted to a jury . . . because they involve a complicated and fluid body of law and risk diverting the jury's attention away from the task of determining guilt or innocence (People v Conklin, supra, at 26)." Consequently, we find that the trial court herein properly held that the issue of whether the police had reasonable suspicion to stop defendant had been previously determined at the hearing, and was not a question for the jury.

"A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause" (People v Jensen, 86 NY2d 248, 253 [1995]; see also People v Peacock, 68 NY2d 675 [1986]). Contrary to defendant's contention, the People clearly established at trial that there was probable cause for the officer to believe that defendant had committed a crime, i.e., disorderly conduct, in that the officers testified that they attempted to stop a vehicle as part of their investigation, and after the vehicle stopped, defendant, who was the driver, exited, yelled curses at the officers and said, inter alia, that "you know, it's going to take more than two of you guys to take me out." The officers stated that they walked towards defendant, to attempt to calm him down, whereupon defendant pushed an officer in his chest. They then attempted to place defendant under arrest because he was yelling, cursing and causing an annoyance, but defendant refused to place his hands behind his back and was kicking, screaming and cursing. Other officers arrived at the scene, a struggle ensued and everyone ended up on the ground. We find that the trial court properly denied defendant's motions for dismissal of the charges.

Furthermore, contrary to defendant's contention, the record on appeal does not indicate that the trial court denied him his right to have the jury determine whether there was probable cause to believe that he had committed a crime in regard to the resisting arrest charge. In determining whether a court improperly instructed the jury in regard to a resisting arrest charge, the test is "whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied" (People v Ladd, 89 NY2d 893, 895 [1996]). Herein, the trial court's instructions closely followed the criminal jury instructions for resisting arrest (see CJI[NY]2d PL 205.30, at 1472A-1472D) and were proper (see e.g. People v McDonald, 283 AD2d 592 [2001]; People v Costa, 256 AD2d 809 [1998]).

Viewing the trial testimony in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that the evidence adduced at trial was legally sufficient to establish, beyond a reasonable doubt, defendant's guilt of (1) disorderly conduct, in that with the intent to cause public inconvenience or alarm, or recklessly creating a risk thereof, defendant engaged in violent, tumultuous or threatening behavior by screaming, cursing and pushing Police [*3]Officer Kopke in the street (see Penal Law § 240.20 [1]), (2) resisting arrest, in that he intentionally prevented, or attempted to prevent, a police officer from effecting an authorized arrest of him for disorderly conduct (see Penal Law § 205.30) which was premised on probable cause (see e.g. Jensen, 86 NY2d at 253), and (3) harassment in the second degree, in that with the intent to harass, annoy or alarm another person, he hit Police Officer Pellegrino, or attempted or threatened to do the same (see Penal Law § 240.26 [1]).
Decision Date: December 29, 2005