         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
35
KA 09-01788
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRYAN COLON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Sara S.
Sperrazza, A.J.), rendered May 13, 2009. The judgment convicted
defendant, upon a nonjury verdict, of escape in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the indictment is dismissed and the
matter is remitted to Supreme Court, Erie County, for proceedings
pursuant to CPL 470.45.

     Memorandum: On appeal from a judgment convicting him following a
bench trial of escape in the first degree (Penal Law § 205.15 [2]),
defendant contends that the conviction is not supported by legally
sufficient evidence (see generally People v Bleakley, 69 NY2d 490,
495). We agree, and we therefore reverse the judgment.

     Defendant’s parole officer reported to a senior parole officer
that defendant had violated the conditions of his parole. Upon
learning of the alleged violations, the senior parole officer
instructed defendant’s parole officer to take defendant into custody
when he arrived at the parole office. No warrant for defendant’s
arrest was issued at that time. Later that day, defendant was
arrested and shackled when he arrived at the parole office. The
senior parole officer finished processing the necessary forms to
obtain a warrant after defendant was taken into custody. Several
minutes after he was arrested, defendant escaped from the parole
office in shackles and was later recaptured.

     At trial, the People contended that parole officers had authority
pursuant to the Executive Law to issue “verbal warrants” and that
defendant was lawfully taken into custody at the time of his arrest.
The People further contended that the written warrant was signed
before defendant escaped from the parole office. We conclude that
                                 -2-                            35
                                                         KA 09-01788

Supreme Court erred in determining that defendant was lawfully
detained based on the senior parole officer’s verbal authorization and
that the warrant issued after he was taken into custody but before his
escape was sufficient for a valid arrest.

     In People v Bratton (8 NY3d 637, 641-642), the Court of Appeals
concluded that, pursuant to Executive Law § 259-i (3) (a) (i) and 9
NYCRR 8004.2, a parole officer is required to obtain a warrant before
arresting a parolee for an alleged parole violation. The Court
further noted that there is currently no statutory exception to that
warrant requirement (Bratton, 8 NY3d at 643), although a parole
officer may effect a warrantless arrest if the alleged parole
violation constituted an “ ‘[o]ffense’ ” pursuant to Penal Law § 10.00
(1) and was committed in his or her presence (Bratton, 8 NY3d at 643;
see CPL 140.25). The Court reversed defendant’s conviction for
resisting arrest (Penal Law § 205.30), concluding that defendant’s
arrest was not “authorized” because it was made without a warrant in
violation of Executive Law § 259-i (3) (a) (i) and 9 NYCRR 8004.2
(Bratton, 8 NY3d at 641-644).

      Applying Bratton to the facts of this case, we conclude that the
evidence is legally insufficient to support the conviction of escape
in the first degree. Pursuant to Penal Law § 205.15 (2), “[a] person
is guilty of escape in the first degree when . . . [h]aving been
arrested for, charged with or convicted of a class A or class B
felony, he [or she] escapes from custody . . . .” A person is in
“[c]ustody” when he or she is restrained “by a public servant pursuant
to an authorized arrest” (§ 205.00 [2] [emphasis added]). Inasmuch as
defendant’s arrest for a parole violation was not made pursuant to a
warrant, it was not authorized (see Bratton, 8 NY3d at 642-643), and
thus defendant was not in “[c]ustody” pursuant to Penal Law § 205.00
(2). Even assuming, arguendo, that the warrant was signed and issued
after defendant’s arrest but before his escape, we conclude that such
warrant did not render the arrest valid (see Bratton, 8 NY3d at 642-
643).

     In light of our determination, we need not address defendant’s
remaining contentions.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
