People v. Foster

• Decision Date: 07 July 1961
• Citation: 10 N.Y.2d 99,176 N.E.2d 397,217 N.Y.S.2d 596
• Parties: , 176 N.E.2d 397 PEOPLE of the State of New York, Respondent, v. Ernestine FOSTER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 596

217 N.Y.S.2d 596

10 N.Y.2d 99, 176 N.E.2d 397

PEOPLE of the State of New York, Respondent, v. Ernestine FOSTER, Appellant.

Court of Appeals of New York.

July 7, 1961.

Mary Johnson Lowe, New York City, and Audrey Fox Anderson, Brooklyn, for appellant.

Edward S. Silver, Dist. Atty., Brooklyn (William I. Siegel, Brooklyn, of counsel), for respondent.

DESMOND, Chief Judge.

Defendant was convicted of third degree assault committed on the person of a New York City police officer while he was taking defendant into custody on a charge of disorderly conduct as a misdemeanor. Defendant argues that the arrest was illegal because made without a warrant (see Code Crim.Proc., § 177) and that she was thus within her rights and not guilty of criminal assault in using reasonable force to resist the officer's efforts to detain her (see People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238). It appears to us, however, that according to old and settled rules the police officer acted within his powers under the circumstances and that defendant on the found facts was guilty.

As defendant and two girl companions walked past a Brooklyn shop conducted by a Mrs. Salzberg, one of the three struck Mrs. Salzberg's daughter. Then defendant ran into the store and assaulted Mrs. Salzberg. A large crowd began to collect on the sidewalk. Mrs. Salzberg locked the door and called the police. Within a few minutes some 60 policemen arrived and found a mob milling about at the scene. Two of the officers testified that when they got to the place defendant was kicking at the shop door and screaming imprecations at those inside. Mrs. Salzberg, bleeding copiously, told the officers that the yelling, kicking girl (defendant) at the door had attacked and injured her and that she (Mrs. Salzberg) wanted defendant arrested. Sergeant Miller, the superior officer, directed his subordinate officer Landau to arrest defendant on Mrs. Salzberg's complaint. Landau complied by telling defendant that he was taking her into custody for assault at the request of Mrs. Salzberg. Defendant shouted insults at Landau. The crowd of on lookers urged him to let the girl alone. Defendant continued her verbal abuse. Landau told her she would be arrested for disorderly conduct also. When he tried to take hold of her she bit, kicked and scratched him until she was subdued by five policemen.

It would be strange law that would hold such an arrest illegal on the ground that the underlying assault had not been perpetrated in the officer's presence. A more reasonable view is that the affray was still in progress when the police came. Blood was flowing, a mob had gathered, the accused was kicking at the door to get another crack at her victim. What has the statutory requirement of sworn information and warrant to do with all this? To prevent irresponsible arrests of presumably innocent citizens, the statute demands that the officer, unless the misdemeanor be committed in his presence, have assurance in the form of sworn complaint. None of us would strike from the law the reasonable requirement. But the requirement and its purpose are satisfied when as here the visible signs of a continuing assault are right in front of the policeman's eyes. Here there was presented to his consciousness adequate information that what he saw was the last phase of an assault.

Further support for the legality of this arrest could if needed be found in the common-law and statutory (Code Crim.Proc. § 183) doctrine of 'citizen arrest' or 'Arrest by a private person'. A private person like a police officer can arrest another 'For a crime committed or attempted in his presence'. The jurisdiction of a policeman and of a private person is in this instance the same. A convincing opinion (People ex rel. Gunn v. Webster, 75 Hun 278) by Judge Haight, later of this court, concluded reasonably that this requirement was satisfied when one officer saw the crime committed but, under that officer's instructions, the actual taking into custody was by another officer who had not seen the crime. Another logical application of the doctrine was made in People v. Ostrosky, 95 Misc. 104, 108, 160 N.Y.S. 493, 497, where a citizen who witnessed the criminal act delivered the culprit to a police officer who then lawfully took the offender into custody without having seen the act. The court said, citing People ex rel. Gunn v. Webster (supra), that 'the requirement of a warrant falls away entirely when the crime is committed in the presence of a person who makes the arrest; so, also when the person arrested is received by a peace officer from the person who made such arrest' (95 Misc. at page 108, 160 N.Y.S. at page 497). The only conceivable difference between Gunn and Ostrosky and the present case is that in the former there were physical captures and holdings of the wrongdoers by the persons who later turned them over to the officers who removed them to places of confinement. But the physical laying on of hands by the one who saw was a circumstance, not a requisite. A citizen's right to arrest his assailant will be a burden, not a benefit, if the citizen had to chance further injury by physically holding onto his attacker till the nearby policeman can run to the citizen's aid. The rights, securities and protections, public and private, set up by the Code of Criminal Procedure do not depend for applicability on such useless and meaningless conditions.

The judgment should be affirmed.

FULD, Judge (concurring).

I agree for affirmance upon the first ground stated in the Chief Judge's opinion, and solely upon that ground. Although this crime may have already been completed, the fact that an assault had been committed, and that there might be further incidents, was obvious to the police officer when he appeared on the scene. Under such circumstances, the arrest which he made was lawful under the statute. Code Crim.Proc., § 177.

FROESSEL, Judge (dissenting).

We do not agree with the conclusions of fact and law drawn by our brethren from the record before us in order to sustain the conviction of this 16-year-old girl. The evidence clearly shows that there was neither a 'continuing assault' nor a 'citizen's arrest' here. It does show that this arrest was in violation of the legislative mandate and contrary to every decided case in this jurisdiction

Defendant was concededly arrested by a peace officer without a warrant for a misdemeanor not committed in his presence. It was, therefore, illegal (Code Crim.Proc., § 177), and in consequence she was privileged to use reasonable force in resisting the arrest without penalty of criminal prosecution therefor (People v. Massey, 6 N.Y.2d 893, 190 N.Y.S.2d 703; People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238; People v. O'Connor, 257 N.Y. 473, 178 N.E. 762; People v. Defore, 242 N.Y. 13, 150 N.E. 585; Stearns v. Titus, 193 N.Y. 272, 85 N.E. 1077; People v. Shanley, 40 Hun 477 (Gen. Term, 3d Dept.)).

Many years ago (L.1881, ch. 442), the Legislature promulgated in the Code of Criminal Procedure a comprehensive scheme covering all aspects of the law of arrest executed without a warrant (§§ 177, 183, 890; see Report of the Commissioners on Practice and Pleadings (1849), particularly at p. 77). These are not 'useless and meaningless conditions'. There is neither room nor right for judicial enlargement or amendment of this legislative scheme (1 Alexander, The Law of Arrest, § 74), and in only one instance under said code is an arrest for a crime of lower grade than felony permitted without a warrant when not committed in the arresting officer's presence, and this is for vagrancy under section 890, not relevant here.

In view of the comprehensive legislative pre-emption of the field, and further in light of the sacred right of an individual to be protected from an arrest founded upon mere oral complaints where petty crimes of the misdemeanor type are involved, we have strictly construed the code in favor of the one arrested. Thus, even in cases where the complaint made is neither irresponsible nor impulsive and on its face trustworthy, we have declared the arrest illegal if the letter of the statute had not been complied with. Two cases in particular serve to demonstrate the point:

In People v. Defore, 242 N.Y. 13, 150 N.E. 585, supra, affirming 213 App.Div. 643, 211 N.Y.S. 134, the complaining witness was a son of the owner of a rooming house. Defendant Defore rented a room there which was confined to his exclusive use. The son discovered that an overcoat belonging to him was missing. He found the coat hanging in a closet in the defendant's room. He thereupon detained defendant, who was then in a downstairs hallway although complainant did not witness the theft and called the police to the rooming house. When the police arrived, the son was standing in the hallway with defendant and holding the stolen overcoat. The police then arrested defendant for its theft (Record on Appeal in Defore, folios 92-105). We held the arrest illegal, despite the trustworthiness of the oral complaint and the detention or defendant by the complainant. The crime was a misdemeanor not committed in the officer's presence.

In People v. Shanley, 40 Hun 477, supra, the General Term, Third Department, relying upon two English common-law cases, held an arrest illegal under these circumstances: A warrant had been issued for the defendant's arrest. It was in the office of the Chief of Police. An officer went to arrest the defendant as directed in the warrant but did not bring the warrant with him, having left it in the chief's office. In declaring the arrest illegal notwithstanding the issuance of the warrant Learned, P.J., stated the following (40 Hun at page 479) appropriate to the case before us: 'the innocent citizen has a right to protection. It is hardly safe to say that, without a warrant, a policeman may arrest a citizen for an alleged misdemeanor not committed within his sight. If Knapp (the...