Opinion
May 30, 1974
Judgment, Supreme Court, New York County, rendered on October 27, 1972, convicting defendant after a jury trial of the crimes of assault in the first degree, possession of a weapon as a felony, and resisting arrest and sentencing him to indeterminate concurrent terms of seven years, seven years and one year respectively, unanimously modified, on the law, to reverse the conviction and dismiss the charge of resisting arrest, and otherwise affirmed. There is no evidence in the record from which the jury could have concluded that the defendant when struggling with the police officers had been arrested or was in the process of being arrested.
Concur — McGivern, P.J., Kupferman, Murphy, Lupiano and Lynch, JJ.