People v. Dreares

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore BREITEL; BREITEL
Citation15 A.D.2d 204,221 N.Y.S.2d 819
PartiesPEOPLE of the State of New York, Respondent, v. Albert DREARES, Defendant-Appellant.
Decision Date07 December 1961

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.

Page 820

[15 A.D.2d 205] 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 [15 A.D.2d 208] BREITEL, J. P., and RABIN, McNALLY, STEVENS, and BERGAN, JJ.

[15 A.D.2d 205] 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

Page 821

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,[15 A.D.2d 206] 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...

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33 practice notes
  • People v. Goodman
    • United States
    • New York Court of Appeals
    • 18 Diciembre 1986
    ...N.E.2d 113). 1 That rule has been similarly applied, with the sanction of this court, in a criminal case as well. In People v. Dreares (15 A.D.2d 204, 206-207, 221 N.Y.S.2d 819 [Breitel, J.], affd. on opn. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812), the defendant was acquitted in the ......
  • People v. Turner
    • United States
    • New York Supreme Court — Appellate Term
    • 12 Noviembre 1965
    ...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[48 Misc.2d 632] 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. Cherry, 307 N.Y. 308, 121 N.E.2d 238). 'Lacking the essential warrant, havi......
  • People v. Roderman
    • United States
    • New York County Court
    • 29 Mayo 1962
    ...(1937); People v. Engel, 8 A.D.2d 619, 185 N.Y.S.2d 409 (1959) (dissent), rev. e. g., 7 N.Y.2d 1002, 200 N.Y.S.2d 48; People v. Dreares, 15 A.D.2d 204, 206, 221 N.Y.S.2d 819 (1961), App.Dis.N.Y .2d; People v. Gans, 33 N.Y.Crim.Rep. 179, 180, 183 (1915); People v . Parelli, 93 Misc. 692, 693......
  • People v. Roach
    • United States
    • New York Supreme Court
    • 28 Septiembre 1964
    ...crime. The assistant district attorney informs me that our justices have consistently so held on the authority of People v. Dreares, 15 A.D.2d 204, Page 26 221 N.Y.S.2d 819, affd. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812. He has requested that I write an opinion as a basis for appell......
  • Request a trial to view additional results
33 cases
  • People v. Goodman
    • United States
    • New York Court of Appeals
    • 18 Diciembre 1986
    ...N.E.2d 113). 1 That rule has been similarly applied, with the sanction of this court, in a criminal case as well. In People v. Dreares (15 A.D.2d 204, 206-207, 221 N.Y.S.2d 819 [Breitel, J.], affd. on opn. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812), the defendant was acquitted in the ......
  • People v. Turner
    • United States
    • New York Supreme Court — Appellate Term
    • 12 Noviembre 1965
    ...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[48 Misc.2d 632] 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. Cherry, 307 N.Y. 308, 121 N.E.2d 238). 'Lacking the essential warrant, havi......
  • People v. Roderman
    • United States
    • New York County Court
    • 29 Mayo 1962
    ...(1937); People v. Engel, 8 A.D.2d 619, 185 N.Y.S.2d 409 (1959) (dissent), rev. e. g., 7 N.Y.2d 1002, 200 N.Y.S.2d 48; People v. Dreares, 15 A.D.2d 204, 206, 221 N.Y.S.2d 819 (1961), App.Dis.N.Y .2d; People v. Gans, 33 N.Y.Crim.Rep. 179, 180, 183 (1915); People v . Parelli, 93 Misc. 692, 693......
  • People v. Roach
    • United States
    • New York Supreme Court
    • 28 Septiembre 1964
    ...crime. The assistant district attorney informs me that our justices have consistently so held on the authority of People v. Dreares, 15 A.D.2d 204, Page 26 221 N.Y.S.2d 819, affd. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812. He has requested that I write an opinion as a basis for appell......
  • Request a trial to view additional results

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