People v. Tedesche
| Citation | 3 A.D.2d 220,159 N.Y.S.2d 486 |
| Parties | The PEOPLE of the State of New York, Respondent v. Joseph TEDESCHE, Defendant-Appellant. |
| Decision Date | 26 February 1957 |
| Court | New York Supreme Court Appellate Division |
Ira H. Holley, New York City, for defendant-appellant.
William Rand, Jr., Asst. Dist. Atty., New York City, of counsel (Frank S. Hogan, Dist. Atty. New York County, New York City, attorney), for respondent.
Before BOTEIN, J. P., and RABIN, FRANK, VALENTE and McNALLY, JJ.
The defendant, while in the custody of a police officer who told him he was under arrest, broke away and escaped. Through the interference of a crowd, the officer was prevented from immediately reapprehending the defendant or pursuing him. The charge for which the defendant was arrested was the illegal sale of fireworks, which is a misdemeanor by virtue of Section 1894-a of the Penal Law.
Absent a warrant, a police officer may only arrest a defendant charged with a misdemeanor if the crime is committed in his presence. Sec. 177, Code of Criminal Procedure; People v. Cherry, 307 N.Y. 308, 309, 121 N.E.2d 238, 239; People v. O'Connor, 257 N.Y. 473, 178 N.E. 762. Later that day, the defendant surrendered as a station house. He was thereafter arraigned upon the charge. The complaint was dismissed and the defendant discharged because the officer did not witness the alleged sale of the fireworks and the only witness who purportedly saw it could not be located. The defendant was then charged with escape from lawful custody, § 1694, Penal Law, and, after trial was convicted. There having been no legal arrest, the defendant was not in 'lawful custody' within the meaning of the Penal Law, and his escape was not from the custody contemplated by Section 1694. The judgment of conviction should therefore be reversed and the information dismissed.
Judgment unanimously reversed and the information dismissed. Settle order on notice.
To continue reading
Request your trial
-
People v. Allah
...charge. Only two cases in New York have addressed the question of what constitutes an "authorized" arrest. In People v. Tedesche, 3 A.D.2d 220, 159 N.Y.S.2d 486 (1st Dept 1957), the Appellate Division of this Department found that the defendant was not in "lawful custody" because the arrest......
-
Angrisani v. Rosetti
...a peace officer to make a warrantless arrest for a misdemeanor only if 'committed or attempted in his presence.' People v. Tedesche, 3 A.D.2d 220, 221, 159 N.Y.S.2d 486, 487. This Court finds that the misdemeanor charged was committed in the presence of the arresting officer, even though th......
-
Millea v. City of New York
...may only arrest a defendant charged with a misdemeanor if the crime is committed in his presence' (People of State of New York v. Tedesche, 3 A.D.2d 220, 221, 159 N.Y.S.2d 486, 487; Code of Criminal Procedure, § 177, subd. 1; cf., as to a felony, Stearns v. New York City Transit Authority, ......
-
People v. Chazanoff
...in his presence. (Code of Crim.Proc. § 177(1); People v. Moore, 11 N.Y.2d 271, 228 N.Y.S.2d 822, 183 N.E.2d 225; People v. Tedesche, 3 A.D.2d 220, 159 N.Y.S.2d 486.) The officer's testimony as to observations of defendant's activities and the telephone conversation which he overheard, was i......