People v. Massey

CourtNew York Supreme Court Appellate Division
Citation7 A.D.2d 850,181 N.Y.S.2d 473
PartiesPEOPLE of State of New York, respondent, v. Eddie MASSEY, appellant (two cases).
Decision Date05 January 1959

Jawn A. Sandifer, New York City, for appellant.

Howard D. Stave, New York City, for respondent.

Emanuel Redfield, New York City, amicus curiae.

Before WENZEL, Acting P. J., and BELDOCK, MURPHY, UGHETTA and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

Consolidated appeals (1) from judgments of the Court of Special Sessions of the City of New York, Borough of Queens (one Justice dissenting), convicting appellant on two informations, one charging him with assault in the third degree inflicted with hands, arms and fists upon a police officer, and with resisting arrest by such officer, and the other charging him with assault in the third degree inflicted 'with his booted feet' upon such officer and sentencing him to serve 30 days on each information, execution of which sentences was suspended, and (2) from said sentences.

Judgments reversed upon the law and the facts, and informations dismissed.

The record fails to establish beyond a reasonable doubt appellant's commission of the crimes charged. The record does not show beyond a reasonable doubt that appellant, without provocation, assaulted the police officer or that the officer ever actually elected to place appellant under arrest by reason of such unprovoked assault, even though the officer had threatened so to do. Rather, the record does establish that appellant's assault, if any, upon the officer occurred during the course of appellant's resistance to the attempt of that officer and a fellow police officer, both without a warrant, to force appellant against his will to accompany them to the station house for questioning as a suspect in the commission of a reported crime of stone throwing, a misdemeanor. Under the circumstances the conduct of the police officers constituted an unlawful arrest of the appellant which justified his resistance and his counterassault upon the police officer (People v. Glennon, 37 Misc. 1, 74 N.Y.S. 794; People v. Glennon, 175 N.Y. 45, 67 N.E. 125; People v. Cherry, 307 N.Y. 308, 310-311, 121 N.E.2d 238, 239-240; People v. Daniels, 285 App.Div. 619, 624, 139 N.Y.S.2d 597, 601; People v. Field, City Ct.Rochester, 15 N.Y.S.2d 561; People v. Singleton, Mag.Ct., 117 N.Y.S.2d 114).

If the informations were not being dismissed, a new trial would be granted on the ground that the judgments...

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8 cases
  • People v. Briggs
    • United States
    • New York Supreme Court Appellate Division
    • 2 Febrero 1966
    ...was being made was not committed in the officer's presence (e. g., People v. O'Connor, 257 N.Y. 473, 178 N.E. 762; People v. Massey, 7 A.D.2d 850, 181 N.Y.S.2d 473) or that no misdemeanor was found to have in fact been committed although the activity on which the charge was based took place......
  • People v. Lewis
    • United States
    • New York Supreme Court Appellate Division
    • 6 Abril 1961
    ......People v. Daniels, 285 App.Div. 619, 139 N.Y.S.2d 597; People v. Massey, 7 A.D.2d 850, 181 N.Y.S.2d 473).         Judgment of conviction unanimously ......
  • People v. Papp
    • United States
    • New York Court of General Sessions
    • 16 Marzo 1959
    ...(People v. Cherry, 307 N.Y. 308, 310, 121 N.E.2d 238, 239; see also People v. O'Connor, 257 N.Y. 473, 178 N.E. 762; People v. Massey, 7 App.Div.2d 850, 181 N.Y.S.2d 473; People v. Daniels, 285 App.Div. 619, 139 N.Y.S.2d This basic principle is reflected in the New York City Police Departmen......
  • People v. Hackley
    • United States
    • New York Supreme Court Appellate Division
    • 17 Diciembre 1963
    ...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......
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