Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Daniel Chun, J.), rendered November 11, 2008. The judgment convicted defendant, upon his plea of guilty, of resisting arrest.

ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.

Defendant was charged, in a single accusatory instrument, with resisting arrest (Penal Law § 205.30), attempted petit larceny (Penal Law §§ 110.00, 155.25) and disorderly conduct (Penal Law § 240.20 [3]). After his oral application to dismiss the accusatory instrument as facially insufficient was denied, defendant pleaded guilty to resisting arrest in satisfaction of all the charges. On appeal, defendant argues that the accusatory instrument was facially insufficient insofar as it charged him with resisting arrest because it failed to allege facts that would establish, if true, that the arrest had been authorized.

Although the accusatory instrument in this case was a misdemeanor complaint, as conceded by the People, it must be evaluated under the standards that apply to an information (see CPL 100.40 [1]) because defendant did not waive his right to be prosecuted by misdemeanor information (see People v Kalin, 12 NY3d 225 [2009]).

An information alleging resisting arrest (Penal Law § 205.30) must, in the factual part, set forth allegations sufficient to establish, if true, that defendant's arrest was lawful (People v Jensen, 86 NY2d 248, 253 [1995]; see also People v Lucas, 15 Misc 3d 139[A], 2007 NY Slip Op 50943[U] [App Term, 9th & 10th Jud Dists 2007]). In this case, the information needed to allege sufficient facts from which it could be rationally inferred that the officer had probable cause to arrest defendant for either attempted petit larceny or disorderly conduct (see People v Jensen, 86 NY2d 248, 253 [1995]).

With respect to the arrest for attempted petit larceny, the accusatory instrument alleges that defendant was observed attempting to open the driver's side door of a car which did not belong to him and which defendant did not have the owner's permission to access. "A person is guilty of petit larceny when he steals property" (Penal Law § 155.25). To constitute an attempt, [*2]an act must "carry the project forward within dangerous proximity to the criminal end to be attained" (People v Bracey, 41 NY2d 296, 300 [1977], quoting People v Werblow, 241 NY 55 [1925]). We find that it is not rational to infer, solely from the act of attempting to open the car door, that defendant had come within dangerous proximity of stealing either the car or some unidentified item in the car. Consequently, the accusatory instrument failed to allege facts from which it could be inferred that the arrest for attempted petit larceny was authorized (see Jensen, 86 NY2d 248).

With respect to the arrest for disorderly conduct, the accusatory instrument alleges that defendant yelled at the arresting officer and used obscene language prior to the arrest. However, it did not allege that the dispute extended beyond those two individuals. Consequently, the accusatory instrument failed to allege facts from which it could be inferred that the arrest for disorderly conduct was authorized (see People v Weaver, 16 NY3d 123, 128 [2011]; see also People v Konieczny, 2 NY3d 569, 576 [2004]).

Since the accusatory instrument did not include allegations establishing, if true, the necessary element of resisting arrest that the underlying arrest was authorized, and jurisdictional defects in an information are nonwaivable (see People v Casey, 95 NY2d 354 [2000]), the judgment of conviction is reversed and the accusatory instrument is dismissed as fatally defective (see People v Alejandro, 70 NY2d 133 [1987]).

Weston, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the judgment of conviction in the following memorandum:

To effectuate a legal arrest, a police officer need only have probable cause to believe that the suspect committed a crime (People v Guo Fa Liu, 271 AD2d 695 [2000]). "Probable cause for a warrantless arrest does not require proof sufficient to support a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed" (People v Cooper, 38 AD3d 678, 679 [2007]) [internal quotation marks omitted]). Furthermore, "in a probable cause analysis, the emphasis should not be narrowly focused on . . . any . . . single factor but on an evaluation of the totality of circumstances, which takes into account the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents" (People v Williams, 69 AD3d 663, 664 [2010]).

The totality of the circumstances in the case at bar include (1) defendant's attempt to open the driver's side car door, (2) defendant's confrontational and defensive responses to the arresting officer's inquiries concerning his observations, (3) defendant's refusal to cooperate with the officer, (4) defendant's intention to leave the scene on his bicycle upon the officer's approach, and (5) the car dealership owner's statement that defendant did not have permission to use the vehicle. When examining the totality of the circumstances, I find that it was completely reasonable for the arresting officer to conclude that defendant was engaged in a criminal act.

Apparent in the arguments put forth by defendant in his brief is defendant's misapprehension of the question now before the Appellate Term. Defendant essentially devotes the majority of his brief to arguing that he is innocent of the crimes of attempted petit larceny and disorderly conduct. However, such arguments are inconsequential to the question at hand. [*3]Rather, the issue here is quite simple: did the arresting officer have probable cause to arrest defendant on suspicion of committing the crimes of petit larceny and/or disorderly conduct? The matter of defendant's ultimate guilt or innocence in regard to these crimes is of no relevant concern.

"A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00). To constitute an "attempt" to commit a crime, a defendant's acts must not be "mere preparation" or too remote from the crime itself, but rather "proximate and near to the consummation" (People v Acosta, 80 NY2d 665, 670 [1993]). Here, defendant's acts as alleged by the officer are not merely preparatory. Indeed, the act of opening the car door would be the very first step in stealing a car. By attempting to open the door, defendant was no longer preparing, but acting. While it may be argued whether the alleged facts would allow a jury to find defendant guilty beyond a reasonable doubt, that is not the question before us. Rather, we must merely decide if the facts supplied the bare minimum necessary to provide the officer with probable cause to believe that defendant was attempting to steal the vehicle, thereby validating his plea of guilty to the charge of resisting arrest.

Defendant's attempt to gain access to the car, combined with the other factors listed above, provided the arresting officer with probable cause to believe defendant was attempting to steal the vehicle. Additionally, the violent manner in which defendant resisted the officer in a public area supplied the basis for the disorderly conduct charge.

The existence of probable cause coupled with defendant's attempts to prevent his arrest detailed in the accusatory instrument are sufficient to sustain the charge of resisting arrest. Thus, I would affirm the judgment.
Decision Date: January 20, 2012