Opinion
June 28, 1961
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Goldman, Halpern and Henry, JJ.
Judgment of conviction unanimously reversed on the law and the facts, and a new trial granted. Memorandum: Defendant was indicted for violations of subdivisions 4 and 5 of section 242 of the Penal Law (assault, second degree). There was a serious question as to whether the arrest of defendant by a police officer, which defendant resisted and out of which the charges of assault grew, was lawful and authorized. If the jury believed the defendant's testimony, the arrest was unlawful and defendant had the right of reasonable resistance. However, the Trial Judge failed to charge the distinction between a lawful and unlawful arrest, the rights of defendant to resist an unlawful arrest, and the extent of such permitted resistance. These matters were important in the protection of defendant's rights ( People v. Lewis, 13 A.D.2d 714). The Trial Judge failed to charge the elements of the crime of assault except for the bare reading of the statute. Furthermore, he read subdivisions 1, 2 and 3 of section 242 and subdivisions 2 and 3 of section 244 of the Penal Law, which could have no possible bearing upon the crime charged or any lesser degree thereof. The reading of subdivision 2 of section 244, which deals with driving an automobile in a culpably negligent manner, was particularly harmful and misleading because the officers claimed that the right to arrest arose from the manner in which defendant drove a stolen car. We have condemned the practice of reading and charging inapplicable statutes ( People v. Nicoll, 3 A.D.2d 64, 79). The knife which the arresting officer claimed was wielded by defendant during the assault was an important exhibit. The proof connecting the defendant with the particular knife which was put in evidence was, at least partly, circumstantial. Nevertheless, the rules relating to circumstantial evidence were not charged, although there was a request therefor. A police officer testified that the defendant refused to talk when questioned after arrest. This was objected to. The objection should have been sustained, the answers stricken and the jury instructed to disregard them ( People v. Bianculli, 9 N.Y.2d 468; People v. Orgovan, 14 A.D.2d 482). The jury was told that the fact that defendant has been indicted was no evidence "in and of itself that he is guilty of the crime" and that the indictment "of itself is no evidence of guilt." The defendant was entitled to a flat charge that the indictment was no evidence of guilt. As to the facts, the arresting officer testified that he shot defendant while defendant was coming toward him with a knife raised in his hand in a gesture of assault. Nevertheless, it is undisputed that the bullet entered the back of defendant's trousers and leg. Just how this could occur while defendant was running toward the officer is difficult to perceive. A new trial of the assault counts is required.