People v. Vogel
| Decision Date | 04 August 1982 |
| Citation | 457 N.Y.S.2d 666,116 Misc.2d 332 |
| Parties | The PEOPLE of the State of New York, Respondent, v. David VOGEL, Appellant. |
| Court | New York Supreme Court — Appellate Term |
Ladanyi & Croll, New York City (Robert A. Ladanyi, New York City, of counsel), for appellant.
Carl A. Vergari, Dist. Atty. (Richard E. Weill, Gerald D. Reilly, New York City and Kevin S. Finnigan of counsel), for respondent.
Before FARLEY, P.J., and SLIFKIN and WIDLITZ, JJ.
Appeal from judgment convicting defendant of obstructing governmental administration (Penal Law, § 195.05).
Judgment unanimously reversed on the law and new trial ordered.
Defendant was charged with obstructing governmental administration for attempting to free his brother from a police car after his brother had been arrested. At trial, defendant requested a jury instruction to the effect that he could not be convicted unless the jury found that the arrest of his brother was authorized. Such an instruction was not given.
In our view, the court erred in failing to give the requested instruction. Just as a defendant cannot be convicted of resisting arrest unless the People show that the arrest was lawful (see People v. Stevenson, 31 N.Y.2d 108, 335 N.Y.S.2d 52; People v. Harewood, 63 A.D.2d 876, 406 N.Y.S.2d 44; People v. Lyke, 72 Misc.2d 1046, 340 N.Y.S.2d 357) so a defendant cannot be convicted of obstructing governmental administration for interfering with an officer in the performance of an official function unless it be proved that the official function was an authorized one (see People v. O'Connor, 257 N.Y. 473, 178 N.E. 762; People v. Richter, 265 App.Div. 767, 40 N.Y.S.2d 751; People v. Ailey, 76 Misc.2d 589, 350 N.Y.S.2d 981). When the official function involved is an arrest, it must be shown that the arrest was authorized. In this context, the issue of whether an arrest was authorized is for the jury and the jury must be clearly instructed that defendant cannot be convicted unless the arrest was authorized (see People v. Harewood, supra ). Since, in the instant case, the jury was not so instructed, a new trial is required.
We have examined defendant's other contentions and find them to be without merit.
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...a lawful search. Id. Resisting an illegal search does not, however, constitute a violation of the statute. See People v. Vogel, 116 Misc.2d 332, 457 N.Y.S.2d 666, 667 (1982); People v. Joseph, 156 Misc.2d 192, 592 N.Y.S.2d 238, 240 In the case at bar, defendants arrested Esmont after she re......
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...(PL § 205.30) cannot be sustained. A Defendant cannot be convicted of obstructing an unauthorized action. People v. Vogel, 116 Misc.2d 332, 457 N.Y.S.2d 666 (App.Term, 2d Dept.1982), citing People v. O'Connor, 257 N.Y. 473, 178 N.E. 762 (1931). Additionally, a defendant cannot be convicted ......
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Houghton v. Culver, 03-CV-6381L.
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