People v. Briggs

• Decision Date: 02 February 1966
• Citation: 25 A.D.2d 50,266 N.Y.S.2d 546
• Parties: The PEOPLE of for State of New York, Respondent, v. Albert BRIGGS and Alden Briggs, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 546

266 N.Y.S.2d 546

25 A.D.2d 50

The PEOPLE of for State of New York, Respondent, v. Albert BRIGGS and Alden Briggs, Appellants.

Supreme Court, Appellate Division, Third Department.

Feb. 2, 1966.

Paul H. McCabe, Dist. Atty. of Chemung County (Samuel J. Castellino, Elmira, of counsel) for People of Stat of New York.

Edward B. Hoffman, Elmira, for defendants-appellants.

Before HERLIHY, J. P., and REYNOLDS, TAYLOR, AULISI, and HAMM, JJ.

REYNOLDS, Justice.

Appeals by Alden Briggs from judgments of conviction of the County Court, Chemung County, of assault, second degree, in violation of subdivisions 4 and 5 of § 242 of the Penal Law and of possession of a firearm in violation of subdivision 2 of § 1897 of the Penal Law and by Albert Briggs from a judgment of conviction of the same court of assault, second degree, in violation of subdivision 5 of § 242.

On September 14, 1963 three warrants were issued by a Justice of the Peace for the arrest of Alden Briggs charging him with misdemeanors stemming from his operation of a motor vehicle. The People contend that on September 21, 1963 a State Trooper who was attempting to execute these warrants was prevented from so doing by the armed resistance of Alden Briggs and that Albert Briggs, Alden's father, aided and abetted in this resistance.

Appellants assert that the assault convictions under § 242(5) cannot stand because the informations upon which the original warrants were issued were insufficient thus making the attempted arrest illegal and resistance thereto permissible. Since the warrants were dismissed for insufficiency, albeit one year after the convictions here involved, and such dismissal was appealable (Code of Criminal Procedure, § 518; People v. Malmud, 4 A.D.2d 86, 164 N.Y.S.2d 204), the question of the insufficiency of the informations is res judicata and thus not reviewable here. Moreover, an information is the basis of the magistrate's authority, and, therefore, without a sufficient information the magistrate does not have jurisdiction and any warrant issued by him is not only invalid but a nullity and absolutely void (Code of Criminal Procedure, §§ 148-150; People ex rel. Perkins v. Moss, 187 N.Y. 410, 80 N.E. 383, 11 L.R.A.,N.S., 528; People v. Mosier, 10 Misc.2d 815, 173 N.Y.S.2d 217). Thus since the warrants were invalid, any arrest made pursuant thereto was not lawful.

In reaching these conclusions we have little difficulty; however, the problem of whether resistance was permissible in the instant case despite the invalidity of the warrants and resulting unlawfulness of the attempted arrest proves more troublesome. Despite some compelling arguments for a contrary position (State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428 [1965]; Model Penal Code, § 3.04 paragraph [a][i] and comments thereto; Warner, The Uniform Arrest Act, 28 Va. Law Rev. 315, 330 [1942], it is the well established law of this State (e. g., People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238; People v. Hamilton, 18 A.D.2d 871, 237 N.Y.S.2d 97; People v. Dreares, 15 A.D.2d 204, 221 N.Y.S.2d 819; People v. Daniels, 285 App.Div. 619, 139 N.Y.S.2d 597; People v. Dority, 282 App.Div. 995, 125 N.Y.S.2d 526) and the prevailing view in most other jurisdictions (see e. g., John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874; State v. Bowen, 118 Kan. 31, 234 P. 46) that one being arrested illegally is privileged to resist his would-be captors, even though they be police officers, provided that the force or violence utilized is not more than is reasonably sufficient to prevent the arrest. Thus while 'the victim may not pursue his counterattack merely for the sake of revenge or the infliction of needless injury' (People v. Cherry, supra 307 N.Y. at 311, 121 N.E.2d at 240), there is authority in a few States sanctioning the use of deadly force if necessary to prevent an illegal arrest (see e. g., Perdue v. State, 5 Ga.App. 821, 63 S.E. 922; State v. Bethune, 112 S.C. 100, 99 N.E. 753; Note, 66 L.R.A. 353). But no case we have found in this State or in any other jurisdiction involves resistance to an officer attempting an arrest on an invalid warrant. Most of the prior cases in this State have rather involved arrests being made in contravention of § 177 of the Code of Criminal Procedure in that the misdemeanor for which the arrest was being made was not committed in the officer's presence (e. g., People v. O'Connor, 257 N.Y. 473, 178 N.E. 762; People v. Massey, 7 A.D.2d 850, 181 N.Y.S.2d 473) or that no misdemeanor was found to have in fact been committed although the activity on which the charge was based took place in the presence of the officer (e. g. People v. Dreares, supra, 15 A.D.2d at 206-207, 221 N.Y.S.2d at 821-822; People v. Daniels, supra; People v. Dority, supra; People v. Bomboy, 32 Misc.2d 1002, 229 N.Y.S.2d 323; People v. La Sister, 9 Misc.2d 518, 170 N.Y.S.2d 702; see also, People v. Hamilton, supra, where a felony was suspected). There is only one older case, People v. Shanley, 40 Hun 477, which even involves a warrant and in that case the issue centered not on the validity of the warrant but the fact that the arresting officer did not have it with him to display to the party he was attempting to arrest, having left it back at the police station.

We are thus presented with a case of first impression and with compelling reasoning to support the positions advanced by both the People and the appellants. The People's position is buttressed not only by a trend toward limiting this right of resistance in view of the improvement wrought in modern penal practices which have eliminated the necessity and thus the justification for resistance but also by the fact that unlike the arrest which is unlawful for being in contravention of § 177 of the Code of Criminal Procedure, here the arresting officer could not be held to realize the impropriety of his actions, being able in no practical manner to test the validity of the warrants upon which he is basing his actions. Appellants in turn are supported not only by a long history of decisions countenancing resistance to an unlawful arrest but also by the clear language of § 242(5) that the apprehension being resisted must be 'lawful'. In the final analysis, despite compelling reasons to the contrary, we are constrained to hold that the resistance here involved did not constitute a breach of § 242(5) and that thus the convictions of both appellants for violation of § 242(5) must be reversed.

This determination, however, does not dispose of the conviction of Alden Briggs under § 242(4). As previously noted, even if resistance is sanctioned only reasonable force can be utilized (Penal Law, § 246(3); People v. McNeil, 21 A.D.2d 1, 247 N.Y.S.2d 734, affd. 15 N.Y.2d 717, 256 N.Y.S.2d 614, 204 N.E.2d 648; People v. Cherry, supra; People v. Daniels, supra). What is reasonable will, of course, vary with reference to the severity of the unlawful threat being...