Resisting Arrest in New York

What is resisting arrest in New York?

Penal Law 205.30 is one sentence: a person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person. It is a class A misdemeanor, carrying up to 364 days.

Read that sentence twice, because the defense to most of these charges is sitting in the middle of it.

Does the arrest have to be lawful?

Yes. That is the element that decides most of these cases. The statute does not criminalize resisting an arrest. It criminalizes preventing an authorized arrest. If the underlying arrest was not authorized, an essential element of the charge is missing and the count fails, whatever the defendant did.

So the first question in a resisting arrest case is never what the defendant did. It is whether the officer had probable cause to make the arrest in the first place. That inquiry runs through the same machinery as a suppression hearing, and it is why a resisting count frequently falls when the primary charge does.

This produces a familiar pattern: a person is arrested for something that does not survive scrutiny, and the resisting count is the only charge that remains. Where the original arrest was unauthorized, that count should not stand either.

What counts as resisting?

The conduct element is narrower than the name suggests. It requires intentionally preventing or attempting to prevent the arrest.

Generally sufficient	Generally not
Struggling, pulling away, or physically fighting being handcuffed	Going limp or passive non-cooperation, on its own
Fleeing to defeat the arrest once it has begun	Arguing, protesting, or questioning the officer
Preventing the arrest of another person	Tensing or flinching, absent intent

Words alone are not resisting arrest. Neither is refusing to answer questions. The statute requires intent directed at defeating the arrest, and reflexive movement during a sudden physical encounter is not obviously that.

How is it different from obstructing governmental administration?

The two are charged together so often that people assume they are the same thing. They are not.

Penal Law 195.05, obstructing governmental administration in the second degree, is also a class A misdemeanor, but it is far broader. It reaches intentionally obstructing, impairing or perverting the administration of law or any governmental function, or preventing a public servant from performing an official function, by intimidation, physical force or interference, or by any independently unlawful act.

• Resisting arrest requires an arrest, and requires that arrest to be authorized.
• Obstructing requires no arrest at all. It can cover interfering with an officer performing any official function.

Both require conduct rather than words. An obstruction charge still needs physical force, intimidation, interference or an independently unlawful act, so mere refusal to assist does not qualify.

Can you resist an unlawful arrest?

This is where the law and people’s instincts part company, and the practical answer matters more than the theoretical one.

Legally, an unauthorized arrest defeats the resisting charge, because authorization is an element. But that determination is made later, by a judge, on a full record. It is not made at the roadside, and the officer’s view at the time is what governs what happens to you in the next ten minutes.

The practical consequence is blunt. Physically resisting an arrest you believe is unlawful tends to add charges rather than remove them, and any injury to an officer during the struggle risks an assault charge that carries its own exposure. The arrest is challenged in court, where the authorization element is real and enforceable.

What happens if an officer is injured?

The case stops being a misdemeanor. Penal Law 120.05(3) makes it assault in the second degree, a class D felony, to cause physical injury to a police officer or peace officer with intent to prevent them from performing a lawful duty. The same subdivision covers a long list of other protected roles, including firefighters, emergency medical personnel and nurses.

Two features make this provision dangerous in a resisting case. The injury threshold is physical injury, not serious physical injury, so substantial pain is enough and a sprained wrist or a cut sustained during a struggle can carry it. And the intent required is intent to prevent the lawful duty, not intent to injure.

The counterweight is that the duty must have been lawful, which folds back into the same authorization question that governs the resisting count itself. If the arrest was not authorized, the officer was not performing a lawful duty in making it.

Why does a resisting charge appear on so many cases?

Because it can be generated by the arrest itself. Unlike most offenses, resisting arrest is an accusation about what happened during the police encounter rather than before it, and the only witnesses are usually the officers involved.

That makes the corroborating record unusually important. Body-worn camera footage, dashboard video, nearby surveillance, medical records documenting how injuries actually occurred, and civilian recordings frequently settle what a narrative cannot. Those materials are discoverable and the People are on a clock to produce them, which is covered in discovery.

How does a resisting arrest case usually end?

For someone with no record, and where nobody was hurt, the realistic outcomes are good. An adjournment in contemplation of dismissal leaves no conviction and dismisses automatically after six months. A plea to disorderly conduct is a violation rather than a crime. Dismissal follows if the underlying arrest fails.

If a conviction does result, resisting arrest is a class A misdemeanor and appears on no exclusion list, so it seals automatically three years after sentencing under the Clean Slate Act. See sealing a criminal record.

The cases that go badly are those with an injured officer, because the charge stops being a misdemeanor conversation.

Where are these cases heard in Nassau County?

Resisting arrest and obstructing governmental administration are misdemeanors, so they are heard at Nassau County District Court, 99 Main Street in Hempstead, with Glen Cove and Long Beach City Courts handling cases arising in those cities.

Because a resisting count almost never travels alone, what actually decides the case is usually the charge underneath it. If the primary charge is a felony, the whole matter is arraigned in the District Court and then moves to Nassau County Court at 262 Old Country Road in Mineola. If the primary charge does not survive, the resisting count should be examined on the same footing rather than treated as a survivor.

Related: suppression hearings, what happens at an arraignment, adjournments in contemplation of dismissal, and criminal defense in Nassau County.