Opinion
Argued October 1, 1964
Decided November 19, 1964
Appeal from the Supreme Court in the Second Judicial Department, J. WOLFE CHASSEN, J.P., MILTON SHALLECK and JOHN A. VALENTI, JJ., HERMAN WEINKRANTZ, J.P., THOMAS E. ROHAN and KENNETH M. PHIPPS, JJ.
Kalman Finkel and Anthony F. Marra for appellant.
Frank D. O'Connor, District Attorney ( Benj. J. Jacobson of counsel), for respondent.
Judgment reversed and information dismissed. The physical attack on the arresting policeman was a part of resistance to an unlawful arrest ( People v. Dreares, 15 A.D.2d 204, affd. 11 N.Y.2d 906) and it was not excessive in degree ( People v. Cherry, 307 N.Y. 308). On the People's proof in support of an assault, it appears that the physical attack attributed to defendant was not an unrelated occurrence but was in close sequence to and a part of resistance to the arrest.
Concur: Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE and BERGAN. Judges DYE and SCILEPPI dissent and vote to affirm.