The Cunard of the Resisting Arrest Charge

This blog is being presented as a public service and for informational purposes by the Law Office of Vincent J. Sanzone, Jr.  Telephone Number (908) 354-7006

In 26-years of practicing criminal defense in the State of New Jersey it continually shocks me as to how many fabricated resisting arrest charges are filed on suspects who have not resisted arrest.  These false charges by police officers seem to be a routine standard charge that is filed against all suspects that the cop does not seem to like.  In addition, this charge will always be falsely lodged after the cop uses excessive forces, or beats up the suspect during the arrest.  This is done to justify the beating of the innocent suspect, and as false justification for the beating.  The Elizabeth, New Jersey Police Department, among others, are notorious for such charges, especially when the cop is looking for some downtime-vacation by saying he hurt is back to take off a couple of weeks in the summer.

It is often difficult to defend against such false charges because it is the word of the defendant against the word of the police officers, and most judges and juries, have no idea that some law enforcement people engage in such abhorrent tactics.  Sometimes the only way to defend such charges is to hope that somehow the incident was recorded.  Even with a video which clearly shows that the defendant was not resisting most judges will not dismiss the case but leave it to the jury to decide. That is why cities such as Newark, Elizabeth, Paterson, Jersey City, Orange, East Orange, Plainfield, refuse to install MVR video cameras in their patrol vehicles.

As written in a previous blog many cops knowing that they are being video recorded by an MVR tape, (motor vehicle recorded video) will continually yell out “stop resisting” to the defendant, even though he is not resisting, just so the cop creates a false record (show for later use) that the cop is trying to stop the defendant from resisting.

However, a recently decided unpublished opinion decided on April 13, 2016, State v. Pavan Patel, give some hope to defendants charged with this offense.  In this case the defendant was charged with resisting arrest after the defendant was unjustly assaulted by security guards at an Atlantic City casino.  The officer seeing the assault took the side of the security guard and started wrestling with the defendant attempting to put him under arrest. However, in this case the defendant was never told that he was under arrest.  Even though the municipal court and law division found the defendant guilty, the appellate division reversed in a good well written decision. 

In this case there was no question that the arrest was unlawful, however, even an unlawful arrest can result in a conviction for resisting arrest, if the suspect gives resistance to being handcuffed.  State v. Branch, 301 N.J. Super, 307, 321 (App. Div. 1997) However, it must be noted that the defendant might be justified in resisting arrest, and defend himself, if the police are using excessive force.  State v. Mulvihill, 57 N.J. 151, 156-57 (1970).

However, if the arrest is unlawful, as was in the Patel case, if the officer does not announce the intention to arrest, than the conviction cannot stand.  State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997).  The defense to resisting arrest is not an affirmative defense but an ordinary defense as stated by the decision in Patel.  Accordingly, the State, not the defense, has the burden of disproving the defense. N.J.S.A. 2C:1-13(b); State v. Moultrie, 357 N.J. Super. 547, 555-56 (App. Div. 2003)

The appellate division reversed the conviction by holding that mere actions of the police officer that he was engaged in an attempted arrest was insufficient and therefore the conviction could not stand.

Law office of Vincent J. Sanzone, Jr.

277 North Broad Street, Elizabeth (Union County) N.J. 07207 (908) 354-7006, CriminaldefenseNJ.com.