83 N.Y.2d 192 (1994)

A defendant can be convicted of resisting arrest even if the initial attempt to detain them was unlawful, provided there was a subsequent, authorized basis for the arrest.

Summary

Voliton was convicted of assault and resisting arrest after an encounter with police. The Appellate Division overturned the felony assault convictions, finding the initial police seizure unlawful under People v. May. However, they upheld the convictions for reckless assault and resisting arrest. Voliton appealed, arguing a due process violation and that the resisting arrest conviction was invalid because the initial detention was unlawful. The Court of Appeals affirmed, holding the due process claim unpreserved and finding that the reckless assault provided a basis for a subsequent, authorized arrest, thus supporting the resisting arrest conviction, focusing on his actions after being apprehended on foot.

Facts

Two police officers observed Voliton in a car parked near a suspected drug location. They blocked his car and approached with weapons drawn, suspecting criminal activity. Voliton attempted to drive away, injuring the officers. Shots were fired, and Voliton was eventually apprehended after a chase and physical struggle where he punched and kicked the officers.

Procedural History

Voliton was convicted in the trial court of assault in the second degree (two counts), assault in the third degree, and resisting arrest. The Appellate Division overturned the second-degree assault convictions, citing an unlawful seizure, but affirmed the remaining convictions. Voliton appealed to the New York Court of Appeals.

Issue(s)

1. Whether substantive due process bars convicting a defendant for actions in direct response to a police seizure later deemed illegal.
2. Whether a resisting arrest conviction can stand when the initial attempt to detain the defendant was unlawful.

Holding

1. No, because the constitutional objection was raised for the first time on appeal and is therefore unpreserved.
2. Yes, because the defendant’s commission of an assault, third degree, against one officer during the initial encounter furnished the predicate for his subsequent authorized arrest.

Court’s Reasoning

The Court held the due process argument was unpreserved because it was raised for the first time on appeal, and it did not fall under an exception to the preservation rule. The Court distinguished this case from situations impacting the court’s fundamental jurisdiction. Regarding the resisting arrest charge, the Court reasoned that although the initial attempt to detain Voliton may have been unlawful, his subsequent reckless assault of an officer provided probable cause for a lawful arrest. Because the jury found that Voliton punched and kicked the officers while they were attempting to handcuff him after the foot chase, the resisting arrest conviction was valid. The Court also cited Penal Law § 35.27, noting that a person may not use physical force to resist an arrest, authorized or unauthorized, when it reasonably appears the person is a police officer. The court highlighted the lack of a requested jury instruction regarding self-defense against excessive force. Judge Smith dissented, arguing that the trial was fundamentally flawed because the jury wasn’t instructed on justification, and they should have been informed the initial police conduct was illegal when considering the assault charge. He also argued no basis existed for the resisting arrest conviction because the initial police conduct was unlawful: “It is inconsistent for this Court, as it was for the Appellate Division, to sustain a charge of resisting arrest in the face of the conclusion that the police officers violated the law.”