Opinion
May 17, 1962
Appeal from the Onondaga Trial Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order unanimously reversed on the law and facts and motion for a new trial granted, with costs to appellant to abide the event. Memorandum: This was an action for an assault committed upon the appellant by the police of the City of Syracuse after his arrest. There was no force exercised by the appellant at the time of his arrest nor was he belligerent. The same day, after having been taken by prowl car and police patrol to the police station, escorted by several policemen, he was hospitalized with a fractured rib and bruises. The charge of the court as to the permissible use of force in effecting an arrest pursuant to section 246 of the Penal Law was not applicable to the facts in this case and therefore charging the section was highly prejudicial. So too was the admission of evidence of a prior altercation with his brother and sister. Timely objections were taken. For these reasons this verdict cannot stand.