No. 79 - People v Larry Bratton

Larry Bratton, after serving somewhat more than three years for a drug conviction, was released
on parole in January 2005. On the night of February 8, 2005, Parole Officers Edward Wijkowski and
Jeffrey Jones went to Bratton's apartment in Ithaca to administer an unannounced drug test. Bratton admitted them into his apartment, but told them his curfew was not until 10 pm and said they should return in an hour. He disregarded repeated orders to sit down, and when he tried to shoulder his way past Officer Jones and leave the apartment, Officer Wijkowski subdued him and placed him under arrest.

Following a bench trial in Ithaca City Court, Bratton was found guilty of resisting arrest and
sentenced to time served for struggling as Officer Wijkowski attempted to take him into custody on a parole violation. Bratton argued the charge of resisting arrest should be dismissed because the parole officer could not legally arrest him for a parole violation without a warrant under Executive Law§ 259-i(3)(a)(i). The statute provides that parole officers who have reasonable cause to believe that a parolee has violated a condition of parole must "report such fact to a member of the board of parole, or to any officer of the division designated by the board, and thereupon a warrant may be issued for the retaking of such person and for his temporary detention...." City Court said, "[I]t is not necessary for a parole officer to obtain a parole violation warrant to arrest a parolee whose violation occurs in the presence of the parole officer during an interview."

On appeal, Tompkins County Court affirmed the conviction, observing that parole officers are
classified as peace officers under CPL § 210(23) and are therefore authorized by CPL § 140.25(1)(a) to arrest a person without a warrant for "[a]ny offense when he has reasonable cause to believe that such person has committed such offense in his presence." The court said, "Defendant claims that a parole violation, for which a defendant is subject to imprisonment, is [] still not an 'offense' under Penal Law§ 10.00(1). Such a holding would put an artificial limitation on the powers of a peace officer, and violate the clear statutory intent of such duties under Penal Law § 10.00(1) and CPL § 140.25(1)(a)."

Bratton contends that his warrantless arrest for parole violation was illegal because Penal Law
§ 10.00(1) defines "offense" as "conduct for which a sentence to a term of imprisonment or to a fine is provided." He argues, "[A] violation of parole is not an offense within the meaning of the Penal Law because no separate term of imprisonment is imposed for such a violation. The parolee ... is returned to a penal institution to serve some or all of the remainder of that already-imposed sentence. Accordingly, a parole officer is not authorized to perform a warrantless arrest of a parolee for a parole violation, even if committed in the officer's presence."