People v. Papp

• Decision Date: 16 March 1959
• Citation: 19 Misc.2d 331,185 N.Y.S.2d 907
• Parties: PEOPLE v. Daniel PAPP.
• Court: New York Court of General Sessions

Page 907

185 N.Y.S.2d 907

19 Misc.2d 331

PEOPLE v. Daniel PAPP.

Court of General Sessions, New York County.

March 16, 1959.

Husin, Miller & Levy, by Irving Husin, New York City, for defendant.

Frank S. Hogan, Dist. Atty. of New York County, New York City, Peter O'Connor, Asst. Dist. Atty., New York City, of counsel, in opposition. of motion.

SCHWEITZER, Judge.

The defendants move to set aside two orders of this court each dated January 21, 1951, which directed the district attorney of New York County to file two informations, one against Florence Pike and Helen Pike charging each with the crime of assault in the third degree, and the other charging Daniel Papp with the crime of resisting a public officer in the discharge of his duty.

The basis for the motions is that there was insufficient evidence before the grand jury to warrant the direction that the informations be filed.

The charge in the informations arose out of the same subject matter and hence the two motions will be considered together. The defendants Pike allege that the arrest by the police officers was illegal and whatever they did was justified in law. The defendant Papp urges that inasmuch as the arrest of the two Pikes was illegal, whatever is claimed that he did could not constitute the crime charged because of the illegality inherent in the acts of the police officers.

At the outset, the moving papers are based on information adduced at the Magistrates' Court hearing against these defendants on the same charges, where the proceedings, were dismissed. Therefore, the allegations are not bottomed merely on speculation and surmise. Where the defendants supply extrinsic facts showing legal insufficiency and these are borne out by the grand jury minutes, the motion to dismiss the indictment should be granted (People v. Howell, 3 A.D.2d 153, 158 N.Y.S.2d 985, affirmed 3 N.Y.2d 672, 171 N.Y.S.2d 801).

It is necessary to allude to the factual setting of the alleged crimes. A police officer, patrolman Stey, was called into Klein's Department Store by Helen Pike who told him that she wanted two women, Mrs. Minor and Mrs. Alston, arrested for fighting with her and her mother. At this point detective Driscoll appeared and assumed charge. The two Pikes asked detective Driscoll to arrest the other two women who, in turn, demanded that the Pikes be arrested. The station wagon was called for all four women, but the Pikes refused to go along. They got permission to call their lawyer, which Florence Pike did, but both still remained adamant and refused to go to the police station. Papp came upon the scene, identified himself as a friend of the Pikes and reportedly told them not to go to the station house. Meanwhile the other two women went into the patrol wagon. Sometime later, while detective Driscoll was pushing Florence Pike into the station wagon, the latter allegedly kicked detective Driscoll and broke away. Her daughter Helen, then allegedly pushed detective Driscoll aside, yelling, 'Let me out, I want to help my mother, she's sick.' The Pikes were, nevertheless, restrained and brought to the police station. Papp was arrested for resisting a public officer in the performance of his duties.

The grand jury minutes show that none of the police officers involved saw the alleged fight between the Pikes and the two other women. Whether the fight involved any actual physical contact or consisted in name calling cannot be gleaned from the minutes. Mrs. Minor and Mrs. Alston did not testify before the grand jury. Further, there is nothing in the record that could sustain even an inference that the Pikes had committed or attempted to commit a felony.

The Code of Criminal Procedure, section 167, defines an arrest as follows: 'Arrest is the taking of a person into custody that he may be held to answer for a crime.'

Section 168 states that an arrest may be made '1. By a peace officer, under a warrant; 2. By a peace officer, without a warrant; or 3. By a private person.'

Section 171 states, 'An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer.'

Section 177 deals with the right of a peace officer to arrest without a warrant and subdivision 1 thereof states, 'For a crime, committed or attempted in his presence.' The other portions of the section deal with felony situations and have no application to the instant facts.

Section 183, in part, permits a private person to arrest another, '1. For a crime, committed or attempted in his presence.'

Thus, in cases of misdemeanors, a peace officer without a warrant may arrest only where the offense was committed or attempted in his presence (People v. Defore, 242 N.Y. 13, 150 N.E. 585). And where the arrest is illegal, 'Defendant had the privilege, therefore, of resisting and using force and violence against his assailants even though they were police officers, 'to prevent an offense against his person * * * if the force or violence * * * [was] not more than sufficient to prevent such offense.' Penal Law, Consol.Laws c. 40, § 246, subd. 3.' (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 597).

This basic principle is reflected in the New York City Police Department Rules and Procedure (1956, p. 109, subdiv. 2.3) which states: 'where a person charges another with a misdemeanor committed in his presence but not in the presence of a member of the force,...