People v. Hackley

• Decision Date: 17 December 1963
• Citation: 245 N.Y.S.2d 58,20 A.D.2d 534
• Parties: The PEOPLE of the State of New York, Respondent, v. Clarence HACKLEY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 58

245 N.Y.S.2d 58

20 A.D.2d 534

The PEOPLE of the State of New York, Respondent, v. Clarence HACKLEY, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 17, 1963.

E. A. Seiff, New York City, for respondent.

C. Paolillo, New York City, for defendant appellant.

Before BOTEIN, P. J., and BREITEL, McNALLY, STEUER and BASTOW, JJ.

PER CURIAM.

Judgment rendered March 26, 1962 convicting defendant of assault in the second degree (Penal Law, § 242) and injury to property as a misdemeanor (Penal Law, § 1433) reversed on the law only, the verdict vacated, and the indictment dismissed.

The assault count may stand only if the officer, Morreale, was making a lawful arrest either for assault or disorderly conduct under the law applicable in 1961. He was not, because there was no showing that defendant was guilty of aggression or excessive force in his altercation with the soldier. Indeed, nothing, except from defendant's exculpatory version, is known of the origin or course of that altercation. Hence, so far as the record proof is concerned, defendant has not been shown to have been barred from resisting the force applied by officer Morreale or that he pursued a 'counterattack merely for the sake of revenge or the infliction of needless injury.' (People v. Cherry, 307 N.Y. 308, 311, 121 N.E.2d 238, 240. Accord, 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. Massey, 7 A.D.2d 850, 181 N.Y.S.2d 473, affd. 6 N.Y.2d 893, 190 N.Y.S.2d 703, 160 N.E.2d 922.) On the evidence defendant intended only to strike the soldier with the bottle. Hence, there was absent the intent to injure property required by the statute. Moreover, intent to injure a person, even if it were shown to be unlawful, could not satisfy the requirement that the defendant be a person who 'wilfully destroys or injures any * * * property of another.' (Penal Law, § 1433; cf. People v. Broady, 5 N.Y.2d 500, 506, 186 N.Y.S.2d 230, 235, 158 N.E.2d 817, 820, 74 A.L.R.2d 841; Wass v. Stephens, 128 N.Y. 123, 28 N.E. 21; 54 C.J.S. Malicious Mischief § 3. Compare, People v. Kane, 131 N.Y. 111, 114-115, 29 N.E. 1015, 1016.) All concur except STEUER, J., who dissents in part in the following memorandum:

STEUER, Justice (dissenting in part).

I agree that the conviction for malicious mischief was without basis, and that count of the indictment should be dismissed for the reasons stated in the majority memorandum. I would further agree that the conviction on the assault count should be reversed, not because the People did not prove a case but because the instructions given the jury were incorrect. I believe that a proper disposition would be a...