People v. Howlett
| Decision Date | 17 December 1973 |
| Citation | 76 Misc.2d 801,351 N.Y.S.2d 289 |
| Parties | The PEOPLE of the State of New York, Respondent, v. George HOWLETT, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Term |
William E. Hellerstein, Robert Kasanof, New York City, and Robert H. Claridge, Legal Aid Society, Criminal Appeals Bureau, New York City, for appellant.
Mario Merola, Dist. Atty. (Robert M. Cohen, New York City, of counsel), for respondent.
Before QUINN, J.P., and LUPIANO and FINE, JJ.
Defendant was entitled to a trial by jury on a charge of Resisting Arrest (P.L. 205.30). It was error to reduce the charge, on the People's motion, to a hypothetical charge of Attempted Resisting Arrest (P.L. 110.00/ 205.30) which deprived him of the right to a jury, in violation of due process of law. The conviction on the reduced charge should therefore, be reversed.
Inasmuch as the sentence imposed a period of probation of three years on the conviction for both attempted resisting arrest and harassment, the case should be remanded for re-sentence on the conviction of harassment.
Judgment modified to the extent of reversing on the law so much thereof as convicted defendant of Attempted Resisting Arrest, and dismissing the complaint on that charge, and reversing the judgment of conviction for harassment on the law as to the sentence and remanding the case for re-sentence, and, as modified, affirmed.
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