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Major Statute New York State Criminal Procedure Law 140.30(1)

Major statute New York State Criminal Procedure Law 140.30(1):

Subject to the provisions of subdivision two, any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence. (Subdivision two refers to where citizens’ arrests may be made, and is discussed below.)

This statute, PL §140.30(1), authorizes citizens’ arrests for any “offense,” if it “in fact” occurs “in the presence” of the security Guard.

An “offense” is any violation of law for which the government may punish the violator, in other words any “criminal” offense. Offenses include felonies, misdemeanors, violations, and traffic infractions. These words are used in the law to “rank” offenses by seriousness.

A felony is an offense for which a prison term of more than one year may be imposed. (Note that an offense does not lose its status as a felony merely if a prison term of more than one year is not in fact imposed; it is the possibility of such a prison term that counts.) Felonies are the most serious crimes, and include offenses such as murder, grand larceny, serious assaults, robbery, burglary, and rape.

Misdemeanors are offenses for which a sentence of incarceration of over 15 days but not more than one year may be imposed. Misdemeanors are crimes, but less serious crimes than felonies. Offenses such as petit larceny (stealing property valued at less than $1,000), simple assault, and many trespasses are misdemeanors.

Violations are offenses for which a jail term of not more than 15 days may be imposed. Examples are disorderly conduct, simple trespass, and harassment. Violations are not crimes, although they are governed by criminal law. A person convicted of a violation does not have a “criminal record.”

Traffic Infractions are a variety of violations concerning improper operation of motor vehicles. Speeding tickets, failure to stop at a red light, and automobile equipment violations are examples. The major difference between traffic infractions and other violations are procedural— the methods used in the court proceedings for traffic infractions differ somewhat from those used for other violations.

Note: Not all traffic offenses are traffic infractions. Some, such as reckless driving or DWI, may be misdemeanors or felonies. The two most important things to remember about citizens’ arrests are that to be legally justified:

(a) The offense must have actually (“in fact”) occurred, and (b) The arrestor must have actually seen it occur (it must have occurred “in the presence” of the arrestor).

(a) With one exception (discussed below), Security Officers are not permitted to make arrests on “probable cause.” To justify a citizens’ arrest, the offense must have actually occurred. A security Guard is not legally authorized to make an arrest merely because s/he has a belief that an offense has occurred, no matter how reasonable that belief is.

(b) For a citizens’ arrest to be legally justified, in addition to the offense having actually occurred, the offense must have occurred “in the presence” of the arrestor. The Security Officer must have actually seen the offense occur. If s/he does not, even if the offense did actually occur, a citizens’ arrest is legally unauthorized.

For example: An employee at a factory advises a Security Officer that another employee has stolen her purse. Three other employees tell the Security Officer that they saw it happen. The Security Officer is not legally authorized to arrest the suspect, since the theft did not occur “in the presence” of the Security Officer.

(This does not necessarily mean that the Security Officer can do nothing to help resolve this case. It only means that the Security Officer may not legally make a citizens’ arrest. The Security Officer could, for example, assist the victim, who actually saw the theft, make her own citizens’ arrest. In such a case, the Security Officer could “do all the work” in making the arrest, but as an agent of the victim.)

The arrestor need not see every single act constituting an offense to meet the requirement that the offense have occurred in his or her presence. The requirement is met if the arrestor sees “enough” the offense to be sure it really occurred.

For example: A Security Officer in a factory hears a scream and sees a man running through the building with a woman’s purse. A female employee is running after him screaming that he just stole it. The offense (theft), if it actually occurred, happened “in the presence” of the Security Officer, because the Security Officer saw the theft in the “escape” stage.

Duties of a Security Officer/private person in arresting - Inform the person who s/he is arresting of the reason for such arrest, unless s/he encounters physical resistance, flight, or other factors rendering such procedure impractical (CPL 140.35).

Time of arrest: A Security Officer/private person may affect an arrest at any hour of the day or night. (CPL §140.35) Use of Force: To effect an arrest, a Security Officer/private person may use such physical force as is justifiable pursuant to PL §35.30 [4].

A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense and who in fact committed such offense; and he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:

(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (b) Affect the arrest of a person who has committed murder manslaughter in the first degree, robbery, forcible rape or forcible sodomy and who is in immediate flight there from.


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