Opinion
July 2, 1962
Appeal by defendant from a judgment of the County Court, Kings County, rendered January 31, 1961, after a jury trial, convicting him of assault in the second degree for resisting arrest; assault in the third degree upon two police officers; and carrying a dangerous weapon, as a felony; and imposing sentence upon him as a second felony offender. Judgment affirmed. No opinion. Beldock, P.J., Ughetta, Kleinfeld and Christ, JJ., concur; Hill, J., dissents and votes to reverse the judgment and to order a new trial, with the following memorandum:
Defendant's guilt depends on whether (as the People's evidence tended to show) the police used no more force than was reasonably necessary to protect themselves against an assault initiated by defendant, or whether (as his evidence tended to show) he was unsuccessfully attempting merely to protect himself against an assault initiated by the police. The issue was factual; it hinged on credibility. Implicit in the jury's verdict was the finding that, to subdue a single handcuffed prisoner, a retinue of armed police officers was needed. It is my opinion that the verdict, based on such finding, is against the weight of the credible evidence, and that in the interests of justice a new trial is required.