People v. Allen
| Citation | 202 N.E.2d 911,15 N.Y.2d 558,254 N.Y.S.2d 369 |
| Parties | , 202 N.E.2d 911 The PEOPLE, etc., Respondent, v. Otis ALLEN, Appellant. |
| Decision Date | 19 November 1964 |
| Court | New York Court of Appeals |
Appeal from Appellate Term of the Supreme Court in the Second Judicial Department.
The defendant was convicted by the Criminal Court of the City of New York, County of Queens, of the crime of assault in the third degree under an information which charged that the defendant had assaulted a patrolman. The defendant was sentenced to six months in the workhouse, and execution of the sentence was suspended and the defendant was placed on probation.
From the judgment of the Appellate Term which affirmed the judgment of conviction, the defendant appealed by permission of an associate judge of the Court of Appeals.
Frank D. O'Connor, Kew Gardens (Benj. J. Jacobson, Long Island City, of counsel), for respondent.
Judgment reversed and the information dismissed. The physical attack on the arresting policement was a part of resistance to an unlawful arrest (People v. Dreares, 15 A.D.2d 204, 221 N.Y.S.2d 819, affd. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812) and it was not excessive in degree (People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238). On the People's proof in support of an assault, it appears that the physical attack attributed to defendant was not an unrelated occurrence but was in close sequence to and a part of resistance to the arrest.
All concur except DYE and SCILEPPI, JJ., who dissent and vote to affirm.
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People v. Turner
...could legally do what was reasonably necessary to resist the unlawful aggression (Penal Law, § 246; People v. Allen, 15 N.Y.2d 558, 559, 254 N.Y.S.2d 369, 202 N.E.2d 911; People v. Dreares, 15 A.D.2d 204, 221 N.Y.S.2d 819, affd. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812; People v. Che......
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People v. Goodman
...There being no evidence that defendant had used excessive force so as to render the assault criminal (see, People v. Allen, 15 N.Y.2d 558, 254 N.Y.S.2d 369, 202 N.E.2d 911), the conviction was reversed and the information dismissed. Significantly, this court in People v. Plevy, 52 N.Y.2d 58......
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People v. Marsh
...a three judge bench which found a defendant guilty of assault after an acquittal for disorderly conduct. It was People v. Allen, 15 N.Y.2d 558, 254 N.Y.S.2d 369, 202 N.E.2d 911. The Appellate Term had affirmed, but the Court of Appeals reversed on the basis of Dreares. My recollection is th......
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United States v. McCarthy
...as part of the resistance to such. People v. McNeil, 1965, 15 N.Y.2d 717, 256 N.Y.S.2d 614, 204 N. E.2d 648; People v. Allen, 1964, 15 N.Y. 2d 558, 254 N.Y.S.2d 369, 202 N.E.2d 911 The right to exert sufficient force to resist an unlawful arrest is a matter of defense to the first count. Th......