People v. Dreares

• Decision Date: 07 December 1961
• Citation: 15 A.D.2d 204,221 N.Y.S.2d 819
• Parties: PEOPLE of the State of New York, Respondent, v. Albert DREARES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 819

221 N.Y.S.2d 819

15 A.D.2d 204

PEOPLE of the State of New York, Respondent, v. Albert DREARES, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 7, 1961.

Stanley Hendricks, New York City, for defendant-appellant.

Frederick J. Murphy, New York City, of counsel (H. Richard Uviller, New York City, on the brief; Frank S. Hogan, Dist. Atty., New York City), for respondent.

Before BREITEL, J. P., and RABIN, McNALLY, STEVENS, and BERGAN, JJ.

BREITEL, Justice Presiding.

Defendant was convicted of assault in the third degree (Penal Law, § 244), after trial in the Court of Special Sessions. The prosecution resulted from his having violently resisted arrest by Transit Authority police upon a charge of loitering in a subway station (Penal Law, § 1990-a, subd. 2), a charge of which defendant was later acquitted.

The subway station in question is an unusually large one, with extended, wide platform and mezzanine levels. It is common knowledge that crimes have occurred in the recesses of such platforms, and this Court has had cases involving crimes of violence committed in such stations at hours when there were few persons about. The two transit officers, who are peace officers, in plain clothes, observed defendant standing on the mezzanine level, intermediate between two train platform levels, at 5 o'clock in the morning. He stood near the women's toilet for approximately 15 minutes. When asked by one of the officers what he was doing he first replied that it was none of their business; but after the officers displayed their shields he, according to one of the officers, but not the other, eventually said he was waiting for a train. When asked why he was not waiting on the train platform, defendant merely shrugged his shoulders. The officers then arrested him; but he broke away from their grasp and was later subdued, after inflicting minor injury upon one of the officers.

The loitering charge, as noted earlier, ended in an acquittal in the Magistrates' Court. Defendant was then prosecuted for third-degree assault, a charge also made at or about the time of his arrest for loitering, and convicted, and this appeal was taken.

For the reasons that follow the conviction must be reversed and the defendant acquitted.

The explanation by defendant to at least one of the officers was not wholly convincing or satisfactory under the circumstances, but there is serious question whether one so situated has an obligation to speak or how extensive is the obligation, if there be any at all (People v. Bell, 306 N.Y. 110, 115 N.E.2d 821, infra). Certainly, however, it was not established that defendant intentionally misled the officers, either by refusing entirely to explain his presence or by offering only a provocative answer to their inquiry. ¹

The prior acquittal for loitering, which is not disputed, is determinative that defendant was not guilty of the underlying offense for which he was arrested (e. g., 2 Freeman, Judgments [5th ed.] § 648; Anno.: Doctrine of Res Judicata in Criminal Cases, 147 A.L.R. 991; 50 C.J.S. Judgments § 754; People v. De Sisto, 27 Misc.2d 217, 236-249, 214 N.Y.S.2d 858, 881-894; People v. Walker, 25 Misc.2d 942, 944, 212 N.Y.S.2d 936, 938; Parrott v. Commonwealth [Ky.], 287 S.W.2d 440). This follows from and is simply a special application of the principle that as to each element in a criminal case, and not only on the whole case, the People must establish guilt beyond a reasonable doubt (1 Wharton, Criminal Evidence [12th ed.] § 16).

Such acquittal, then, raises the issue as to the lawfulness of the arrest in which defendant forcibly resisted the transit officers. The rule in this State is that an arrest without a warrant for an offense less than a felony must be posited upon the actual commission of the crime or offense in the presence of the arresting person (Code Cr.Proc. § 177; Stearns v. Titus, 193 N.Y. 272, 275, 85 N.E. 1077, 1078). Defendant's prior acquittal of the crime for which he was arrested consequently established the arrest to have been unlawful, and he was therefore entitled to resist such an arrest with reasonable force (People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238).

Elsewhere than in this State, of course, there are statutory provisions authorizing arrest upon probable cause to believe that an offense less than a felony has been committed in the arresting officer's presence. In New Hampshire, Delaware and Rhode Island, the Uniform Arrest Act has been adopted, which so provides (N.H.Rev.Stats. ch. 594; Del.Code, Tit. 11, ch. 19; R.I.Gen.Laws, Tit. 12, ch. 7). In California, arrests upon such probable cause were first approved judicially and later expressly authorized by legislation (Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876, cert. den. sub nom. Mock v. Davies, 344 U.S. 840, 73 S.Ct. 50, 97 L.Ed. 653; People v. Bradley, 152 Cal.App.2d 527, 314 P.2d 108; People v. Burgess, 170 Cal.App.2d 36, 338 P.2d 524; Calif.Penal Code, § 836, as amended in 1957).

In a few other states, similar doctrines have been evolved by decisions or stated in legislation (e. g., Ill.Rev.Stat. ch. 38, § 657; Wis.Stat. § 954.03; Mass.Gen.Laws, ch. 41, § 98; Cave v. Cooley, 48 N.M. 478, 152 P.2d 886; State v. Rigsby, 124 W.Va. 344, 20 S.E.2d 906; Ryan v. Conover, 59 Ohio App. 361, 18 N.E.2d 277; Commonwealth v. Chaplin, 307 Ky. 630, 211 S.W.2d 841; but see State v. Mobley, 240 N.C. 476, 83 S.E.2d 100).

The New York courts, it is true, have viewed the requirement that the offense be committed in the officer's 'presence' with realistic liberality (e. g., People v. Foster, 10 N.Y.2d 99, 217 N.Y.S.2d 596, 176 N.E.2d 397, in which the several opinions of the court provide a most interesting analysis of the problem and its practical aspects; People v. Esposito, 118 Misc. 867, 194 N.Y.S. 326). But there has nevertheless been strict adherence to the view that actual commission of a misdemeanor or...