People v. Briggs

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore HERLIHY; REYNOLDS; HERLIHY
Citation25 A.D.2d 50,266 N.Y.S.2d 546
Decision Date02 February 1966
PartiesThe PEOPLE of for State of New York, Respondent, v. Albert BRIGGS and Alden Briggs, Appellants.

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.

Page 547

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.

Page 548

[25 A.D.2d 54] Before HERLIHY, J. P., and REYNOLDS, TAYLOR, AULISI, and HAMM, JJ.

[25 A.D.2d 51] 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

Page 549

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3 practice notes
  • People v. Briggs
    • United States
    • New York Supreme Court Appellate Division
    • March 10, 1967
    ...in violation of subd. 5 of section 242 of the Penal Law, such judgment was reversed on the law and that count of the indictment dismissed (25 A.D.2d 50, 266 N.Y.S.2d 546). Upon appeal to the Court of Appeals, this court's order was modified (19 N.Y.2d 37, 277 N.Y.S.2d 662, 224 N.E.2d 93; de......
  • Woods v. City of New York
    • United States
    • New York Supreme Court Appellate Division
    • December 11, 1967
    ...on him was clearly one of fact and the trial court properly so submitted it to the jury, which found for defendants (cf. People v. Briggs, 25 A.D.2d 50, 266 N.Y.S.2d 546). However, the court set aside the verdict and granted a new trial, holding that only an attack with a lethal weapon coul......
  • Kaufman, In re
    • United States
    • New York Supreme Court Appellate Division
    • February 3, 1966
    ...G. Bonomi, New York City, attorney), for The Association of the Bar of City of New York. H. Elliot Wales, New York City, for respondent. [25 A.D.2d 50] Before BOTEIN, P. J., and BREITEL, STEVENS, EAGER and STEUER, [25 A.D.2d 49] PER CURIAM: This is a motion to confirm the report of the refe......
3 cases
  • People v. Briggs
    • United States
    • New York Supreme Court Appellate Division
    • March 10, 1967
    ...in violation of subd. 5 of section 242 of the Penal Law, such judgment was reversed on the law and that count of the indictment dismissed (25 A.D.2d 50, 266 N.Y.S.2d 546). Upon appeal to the Court of Appeals, this court's order was modified (19 N.Y.2d 37, 277 N.Y.S.2d 662, 224 N.E.2d 93; de......
  • Woods v. City of New York
    • United States
    • New York Supreme Court Appellate Division
    • December 11, 1967
    ...on him was clearly one of fact and the trial court properly so submitted it to the jury, which found for defendants (cf. People v. Briggs, 25 A.D.2d 50, 266 N.Y.S.2d 546). However, the court set aside the verdict and granted a new trial, holding that only an attack with a lethal weapon coul......
  • Kaufman, In re
    • United States
    • New York Supreme Court Appellate Division
    • February 3, 1966
    ...G. Bonomi, New York City, attorney), for The Association of the Bar of City of New York. H. Elliot Wales, New York City, for respondent. [25 A.D.2d 50] Before BOTEIN, P. J., and BREITEL, STEVENS, EAGER and STEUER, [25 A.D.2d 49] PER CURIAM: This is a motion to confirm the report of the refe......

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