
    [650 NYS2d 915]
    The People of the State of New York, Appellant, v Laurie Arbeiter et al., Respondents.
    Supreme Court, Appellate Term, First Department,
    June 19, 1996
    
      APPEARANCES OF COUNSEL
    
      Robert M. Morgenthau, District Attorney of New York County (Mark Dwyer and Robert M. Raciti of counsel), for appellant. Paul ODwyer and Mary D. Dorman, New York City, for respondents.
   OPINION OF THE COURT

Per Curiam.

Order entered October 27, 1994 modified, on the law and on the facts, by denying defendants’ motions to dismiss the charges of disorderly conduct and by reinstating the accusatory instruments insofar as they relate to those charges; as modified order affirmed.

The discretionary power to dismiss a pending criminal prosecution in the interest of justice is to be exercised sparingly (see, People v Hudson, 217 AD2d 53, 55; People v Harmon, 181 AD2d 34, 36) and upon reviewing the record in these consolidated appeals, we conclude that none of these matters presents the rare instance where a dismissal in the interest of justice is warranted.

All 90 defendants herein were charged with disorderly conduct, a violation (Penal Law § 240.20 [5] [obstructing vehicular or pedestrian traffic], [6] [refusing to comply with a lawful police order to disperse from a public assembly]), in connection with their videotaped participation in a 1994 St. Patrick’s Day lesbian and gay "protest” parade on Fifth Avenue in New York City. The substantial impact of the unauthorized parade on midtown vehicular traffic was accurately described by Criminal Court as follows: "When [the] marchers refused a direct police order to leave the intersection of Fifth Avenue and 42nd Street, they snarled traffic for an hour and a half and caused delay and inconvenience for an untold number of their fellow New Yorkers.” Despite noting that there was "uncontrovertible” evidence of the defendants’ guilt, that police "had a legitimate interest in preventing any public disorder that may have ensued” had the protest parade proceeded unabated, and that no police misconduct occurred during the defendants’ arrests, Criminal Court ultimately granted dismissal of all of the disorderly conduct charges in the interest of justice. The principal basis for the trial court’s action was its professed disapproval of the city’s prior refusal to issue a parade permit to the Irish Lesbian and Gay Organization, of which defendants are members.

The court’s disagreement with the city’s handling of what safely can be called a sensitive political issue hardly provides a "compelling” consideration "clearly demonstrating” that conviction or prosecution of the defendants would "result in injustice” (CPL 170.40 [1]; see, People v Molfino, 178 AD2d 238, 241), particularly in these circumstances where, as the trial court itself recognized, the "record is bare of any indication that the defendants sought to avail themselves of the judicial process to force the police and city to issue them a parade permit.” As one noted jurist explained in a similar setting: "It is irrelevant whether [municipal officials acted] * * * out of factional motivation or because of fear that this [assemblage and the potential response of others to it] * * * would be out of control. For their judgment and action, their conduct is reviewable elsewhere, and not by [Criminal Court in the context of a Clayton motion]” (People v Horelick, 30 NY2d 453, 457 [Breitel, J.]).

It may be that the defendants present a sympathetic case since, as the District Attorney conceded below, "[t]he sincerity of defendants’ belief(s) cannot be doubted.” Equally true, however, is the District Attorney’s further point that "sincere beliefs are not an excuse for lawless conduct”, conduct that past experience has taught is likely to keep recurring. On balance, and since an interest of justice dismissal might have an adverse impact upon public confidence in the criminal justice system (CPL 170.40 [1] [h]; see, People v Reyes, 174 AD2d 87, 90), we conclude that the better result is to reinstate the disorderly conduct charges.

Turning to the charges of resisting arrest (Penal Law § 205.30), Criminal Court correctly concluded that the allegations set out in each of the informations charging defendants with resisting arrest are insufficient, even if true, to establish every element of that offense (CPL 100.40 [1] [c]; see, People v Alejandro, 70 NY2d 133). In merely delaying the inevitable by allegedly remaining seated during the arrest process, defendants did not "attempt! ] to prevent” their arrest within the meaning of the resisting arrest statute as presently constituted (see, People v McDaniel, 154 Misc 2d 89, lv denied 81 NY2d 889). Read in accordance with the "ordinary and accepted meaning” (McKinney’s Cons Laws of NY, Book 1, Statutes § 94) of the featured word "prevent” ("to deprive of power or hope of acting, operating or succeeding in a purpose”; implying "an insurmountable obstacle or impediment” [Webster’s Third New International Dictionary 1798 (1981)]), the provisions of Penal Law § 205.30 simply do not cover the type of inaction attributed to these defendants. As the Appellate Term, Second Department stated in parallel circumstances, "there has been no citation to this court of any statute, rule or ordinance that requires a defendant to cooperate once that defendant is arrested and so long as the defendant does not affirmatively act to resist the arrest (People v Stevenson, 31 NY2d 108, 112 [backing up]) then there is no independently unlawful act that the defendant is committing.” (People v McDaniel, supra, 154 Misc 2d, at 92.)

People v Williams (25 NY2d 86), decided under former Penal Law § 1851, does not compel a contrary result. In concluding that the acts of passive resistance there involved constituted "resistance]” under the predecessor resisting arrest statute, the Court of Appeals tracked the then relevant statutory language, noting that the defendant’s conduct in refusing to act as directed was "an obstruction to the police officers in the performance of their duty * * * [which] delayed his own arrest and necessarily the arrest of the others.” (Supra, at 90; emphasis added.) Significantly, the separate but related concepts of "obstruction” and "delay”, which appeared prominently as the lone definitional components of resistance under former section 1851 and were thus appropriately emphasized in Williams, were not carried forward into section 205.30. Since section 205.30 represents not a mere "change in phraseology” (dissenting opn, at 776) but a dismantling of former section 1851, the decisional law developed under the predecessor statute is not determinative of the meaning of the present statute.

Ostrau, P. J.

(dissenting in part). We all agree that the extraordinary remedy of an interest of justice dismissal of the underlying disorderly conduct charges is inappropriate. What divides the court is the issue of the facial sufficiency of the in-formations charging some but not all of the defendants with resisting arrest (Penal Law § 205.30). Each such information contained a sworn statement by the arresting police officer alleging, in nearly identical form, that defendants "passively” resisted arrest by "refusing to get up and accompany [police officers] to the police van, thus requiring * * * police officers to carry the defendants away from the intersection of 42nd [Street] and Fifth Avenue.” Since I believe that these nonhearsay factual allegations are clearly enough to satisfy the "prima facie case” requirement for facial sufficiency (CPL 100.40 [1] [c]; 100.15 [3]), I vote to reverse the order appealed from in its entirety and reinstate all charges.

In People v Williams (25 NY2d 86), a unanimous Court of Appeals, construing the predecessor misdemeanor resisting arrest provision embodied in former Penal Law § 1851, held that the defendants’ passive resistance to arrest in "refus[ing] to get up from the stairs [of the Governor’s office] thereby requiring the police to physically carry them out of the building” (supra, at 88) constituted criminal conduct under the statute. In so holding, the Court of Appeals flatly rejected the same argument now advanced by defendants herein, "that their inaction cannot be viewed as willful resistance because there was no affirmative duty on their part to assist the officers in making the arrest by walking out of the building [here roadway].” (Supra, at 90.) The Court (per Scileppi, J.) closed its writing with the following statement which, regrettably, remains true today: "To hold otherwise would necessarily inhibit the [police] officer in the performance of his duty — a duty, we might add, which has become increasingly more difficult to perform with each passing day.” (Supra, at 91.)

The authoritative holding of People v Williams (supra) continues to be effective and binding under the present formulation of the resisting arrest statute, Penal Law § 205.30, which went into effect in 1967 as part of the over-all redrafting of the former 1909 Penal Law. The legislative history of the amendment is traced in People v Bauer (161 Misc 2d 588, 591-593) and need not be repeated in detail here. It suffices to say that the present version of the statute, a modified form of the resisting arrest provision offered in the Model Penal Code drafted by the American Law Institute, reflects a legislative intent to "broadly proscribe resistance by any means”, whether or not the resistance involves "risk of bodily injur[y]” (Model Penal Code § 242.2, comment 8, at 220-221, quoted in People v Bauer, supra, 161 Misc 2d, at 592-593). While the avowed purpose of the revision was to "modernize” the resisting arrest statute along with other penal provisions (see, Governor’s Mem approving L 1965, chs 1030, 1031, 1965 McKinney’s Session Laws of NY, at 2120), there is no indication that the revisers, against the backdrop of our increasingly violent modern society, intended the present section to be more narrow in scope than its predecessor, an intention which, if put into legislative action, would necessarily accomplish the unwanted result of "inhibit[ing] the * * * officer in the performance of his duty” (People v Williams, supra, 25 NY2d, at 91). The result reached by the trial court and endorsed by the majority today accomplishes just that and, in the process, ignores the established canon of statutory interpretation that a "change in phraseology does not import a change in construction” in the context of a general code revision (McKinney’s Cons Laws of NY, Book 1, Statutes § 193).

That the same result would have obtained in People v Williams (supra) had the Court of Appeals been asked to apply the present resisting arrest statute to the facts there presented is confirmed both by the Court’s treatment of the resisting arrest issue framed in Williams and its subsequent holding in People v Stevenson (31 NY2d 108), a case decided under current Penal Law § 205.30. To place the Williams decision in proper perspective, it must be remembered that although the operative facts in that case occurred in 1963, the Court of Appeals decided the appeal in 1969, four years after current section 205.30 was enacted and two years after the statute’s effective date. Based upon this chronology and the Court’s presumptive awareness of the then recent legislative amendment, it would have made little jurisprudential sense, had the Court intended to signal or leave open the possibility of a different outcome under the amended statute, for the Court to have issued such a strongly worded opinion in a temporal context not likely to recur.

This conclusion is buttressed by the Court of Appeals 1972 decision in People v Stevenson (31 NY2d 108, supra), where the Court recognized that a prima facie showing of resisting arrest under Penal Law § 205.30 need not include proof " 'that a defendant use "force or violence” in obstructing the officer. It is enough that [defendant] engage in some conduct with the intent of preventing the officer from effecting an authorized arrest of himself or another person’ ”. (People v Stevenson, 31 NY2d, at 112, quoting Denzer & McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 205.30, at 677.) Given the present Penal Law definition of "conduct” as "an act or omission and its accompanying mental state” (Penal Law § 15.00 [4]; emphasis added), it is clear that the Stevenson rule is broad enough to proscribe the conduct of the defendants herein in allegedly refusing to submit to police authority after being advised of their arrest. Such conduct, if shown to have been actuated by the requisite criminal intent, would be enough to establish prima facie that defendants attempted to prevent their arrests in the sense of "frustrat[ing]” or "hinder[ing]” them, surely accepted meanings of the word "prevent” (Webster’s Third New International Dictionary 1798 [1981]).

People v McDaniel (154 Misc 2d 89, lv denied 81 NY2d 889), cited by defendants and the majority, is inapposite since it involved the legal sufficiency of judgments of conviction rendered after trial, and not the facial sufficiency of the People’s pleading. To the extent the memorandum decision of the Appellate Term, Second Department in McDaniel (supra) can be read to preclude a resisting arrest conviction under Penal Law § 205.30 in any circumstance where the defendant passively goes limp or remains seated in the face of a lawful police command to submit to an authorized arrest, we are not bound by and should decline to follow its unprecedented holding. Notwithstanding McDaniel’s overly restrictive reading of section 205.30, I believe that this statutory provision, in harmony with its predecessor,

"should not be contracted to absolve the defendants of unlawful conduct merely because they engaged in what they conceived to be a form of protest * * *

"The civilities of protest, as of freedom itself, are essential if the ordered government of an open society is to survive — it may not be discredited by conduct such as these defendants indulged in here, in defiance of the governing law.” (People v Crayton, 55 Misc 2d 213, 214 [App Term, 1st Dept, Hofstadter, J.] [construing former Penal Law § 1851].)

Our system of criminal justice allows a jury to show lenity to and acquit a defendant despite legally sufficient evidence of guilt (see, People v Tucker, 55 NY2d 1, 7). No analogous mercy power is, nor should be, available to a court of law, particularly an appellate court, in determining the facial sufficiency of an accusatory instrument. Whether the People ultimately can persuade a fact finder to convict these defendants of resisting arrest on the basis of the "passive” resistance attributed to them is, of course, an issue not now before us. The narrow jurisdictional question that is presented here permits only one legally sound answer: that enough is alleged in these informations to establish a prima facie showing of resisting arrest under any statutory framework.

Freedman and Davis, JJ., concur; Ostrau, P. J., dissents in part in a separate memorandum. 
      
      . Section 1851 of the former Penal Law provided: "A person who, in any case or under any circumstances not otherwise specially provided for, wilfully resists, delays or obstructs a public officer in discharging, or attempting to discharge, a duty of his office, is guilty of a misdemeanor.”
     
      
      . Penal Law § 205.30 reads as follows: "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.”
     