Thursday, February 10, 2011

Escape From an Unauthorized Arrest is Not An Escape

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. There is currently no statutory exception to that warrant requirement
So what if pursuant to a verbal order from a Senior Parole Officer, a parole Officer, without a warrant, arrests and and shackles a reporting parolee when he arrived at the parole office. and them after the senior parole officer finished processing the necessary forms to obtain a warrant after defendant was taken into custody, the shackled parolee escaped. Is that Escape in the First Degree?

In People v Colon (2011 NY Slip Op 00831 [4th Dept 2/11/11])the Appellate Division, Fourth Department held that it is not an escape in violation of the penal law because there had not been an authorized arrest. The Court explained

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).

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