Monroe County man’s resisting arrest charge dismissed

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A resisting arrest conviction has been dismissed against a Monroe County man initially charged with disorderly conduct for standing on a Rochester street corner.

The Appellate Division, Fourth Department agreed with John C. Howard that a jury’s verdict was against the weight of the evidence. The panel dismissed the indictment and sent the case back to Monroe County Court for further proceedings.

Howard was represented on appeal by Kathleen P. Reardon, of the Monroe County Conflict Defender’s Office, who could not be reached for comment.

The matter was prosecuted on appeal by Assistant District Attorney Nancy Gilligan, who said the further proceedings consist of sealing the case and sending it to the state Division of Criminal Justice Services to remove the arrest from the record.

The July 2009 conviction, according to the decision in People v. Howard (2015 NY Slip Op 07100), resulted from an incident in which Howard was arrested for disorderly conduct because he was standing on a sidewalk. A jury convicted him, instead, of resisting arrest.

Citing People v. Bleakley, 69 NY2d 490, the Appellate Division panel concluded a different finding than what the jury reached would not have been unreasonable and conducted its own review of the trial evidence.

Authority for determining if a verdict is supported by the weight of the evidence is with the Appellate Division, as outlined in People v. Delamota, 18 NY3d 107, a 2011 decision by the Court of Appeals and reiterated in a 2012 Fourth Department case, People v. Oberlander (2012 NY Slip Op 03038).

An appellate court reviewing the weight of evidence must “affirmatively review the record; independently assess all of the proof; substitute its own credibility determinations for those made by the jury in an appropriate case; determine whether the verdict was factually correct; and acquit a defendant if the court is not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt,” Delamota at 116-117.

The panel conducted its review and agreed with Howard that the verdict did not support the conviction because, as the prosecutor conceded, the evidence failed to show beyond a reasonable doubt that the arrest of Howard for disorderly conduct was authorized.

“The Court of Appeals has ‘made clear that evidence of actual or threatened public harm (“inconvenience, annoyance or alarm”) is a necessary element of a valid disorderly conduct charge’ and there is no such evidence of such actual or threatened harm here,” the panel found.

In other words, it is not disorderly conduct for a small group of people, “even people of bad reputation,” to stand peaceably on a street corner and because there was no probable cause to arrest Howard on that charge, he cannot be guilty of resisting arrest, People v. Peacock, 68 NY2d 675.

“Thus we conclude that the jury ‘failed to give the evidence the weight it should be accorded,’” the panel found, quoting Bleakley at 495.

Gilligan said Howard was charged because he was the only one who did not leave when directed to by police.

The panel consisted of Justice Nancy E. Smith, presiding, and Justices Edward D. Carni, Stephen K. Lindley, Joseph D. Valentino and Brian F. DeJoseph. (People v. Howard, 2015 NY Slip Op 07100).

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