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