People v. Massey
Court | New York Supreme Court Appellate Division |
Citation | 7 A.D.2d 850,181 N.Y.S.2d 473 |
Parties | PEOPLE of State of New York, respondent, v. Eddie MASSEY, appellant (two cases). |
Decision Date | 05 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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