        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

96
KA 11-02136
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JUAN A. LABOY, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, THE ABBATOY LAW FIRM, PLLC,
ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered February 25, 2011. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree,
obstructing governmental administration in the second degree and
resisting arrest.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed as a matter of discretion in the interest of
justice and on the law, and the indictment is dismissed and the matter
is remitted to Ontario County Court for proceedings pursuant to CPL
470.45.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the second degree (Penal Law §
120.05 [former (3)]), obstructing governmental administration in the
second degree (§ 195.05), and resisting arrest (§ 205.30). The
conviction arises out of an altercation with a sheriff’s deputy who
responded to defendant’s home in connection with a dispatch for
possible family trouble. Earlier that day, other sheriff’s deputies
had responded to defendant’s home and in his absence obtained an
information signed by the complainant, alleging that defendant
committed harassment in the second degree. When the deputy responded
later that day, she had knowledge that there was a signed information
charging the violation of harassment in the second degree, that
defendant caused red marks on the complainant’s hand or arms, that the
information had not been entered in court, and that there was no
warrant for defendant’s arrest. The complainant was present but,
because of a language barrier, she was able to communicate to the
deputy only that defendant was inside the house and in a certain room
behind a door. The deputy entered the room with her gun drawn and
told defendant multiple times to get out of bed and that he was under
                                 -2-                            96
                                                         KA 11-02136

arrest. Thereafter, an altercation between defendant and the deputy
ensued in which defendant head-butted the deputy, causing a welt on
her head and bruising.

     Defendant contends that the evidence is legally insufficient to
support the conviction. Although defendant preserved that contention
for our review only with respect to the charges of obstructing
governmental administration and resisting arrest (see People v Gray,
86 NY2d 10, 19), we exercise our power to review defendant’s
contention with respect to the charge of assault in the second degree
as well, as a matter of discretion in the interest of justice (see CPL
470.15 [6] [a]). We conclude that the evidence is legally
insufficient to establish that the deputy’s arrest of defendant was
lawful inasmuch as the deputy lacked reasonable cause to believe that
defendant committed an offense in her presence (see CPL 140.10 [1]
[a]). Because the arrest was not authorized at its inception, the
evidence is legally insufficient to support the conviction of assault,
obstructing governmental administration, and resisting arrest (see
People v Perez, 47 AD3d 1192, 1192-1994), and reversal therefore is
required. In view of our decision, we need not address defendant’s
remaining contentions.




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
