Opinion
571159/02, 03-179.
Decided November 29, 2005.
Defendant appeals from a judgment of the Criminal Court, New York County, rendered October 31, 2002 after a jury trial (A. Kirke Bartley, Jr., J.), convicting him of resisting arrest (Penal Law § 205.30), and imposing sentence.
Judgment of conviction (A. Kirke Bartley, Jr., J.), rendered October 31, 2002, affirmed.
PRESENT: Suarez, P.J., Davis, Gangel-Jacob, JJ.
Responding to a radio report of a domestic disturbance, two officers in a marked police car spotted defendant, who matched the suspect's description, running down the street. According to the police report, defendant, when confronted, resisted arrest by flailing his arms and threatening to fight. The officers testified that when they told defendant he would have to accompany them to the scene of the disturbance, he became abusive and refused to be handcuffed, stating that he had just gotten out of jail and was not going back. The two officers summoned backup assistance, and eventually were able to convince defendant to accompany them back to the scene, without handcuffs, in the back seat of the police car. After a third officer spoke with the complainant, he returned to the car and told one of the first responding officers to place defendant under arrest. At this point, defendant refused to exit the vehicle, and there ensued a scuffle requiring six to eight police officers to subdue and handcuff him, defendant all the while insisting that there was no way he was going back to jail. Defendant testified at trial that he struggled only when the police were hurting his arm.
On appeal, defendant argues the prejudicial admission of police testimony as to his alleged refusal to cooperate, which, he alleges, depicted to the jury a recent ex-convict with a propensity toward criminal activity. Absent objection to this testimony at trial, the point is unpreserved (CPL 470.05). Were we to consider the issue, we would find no error, because the description of the events leading to defendant's arrest was probative of the crime actually charged, and did not reflect a propensity for criminal activity ( see People v. Vega, 3 AD3d 239, 247, affd 2 NY3d 766). The testimony was necessary to refute the defense strategy of portraying the police conduct as overly aggressive ( see People v. Brown, 160 AD2d 440, affd 78 NY2d 874), and was admissible as background evidence to complete the narrative of the episode ( People v. Gines, 36 NY2d 932) and to explain the police actions ( see People v. Smith, 248 AD2d 148).
This constitutes the decision and order of the Court.