People v. Brown , 202 N.Y.S.2d 604 ( 1960 )

Judgment convicting defendant of the crime of assault in the third degree, unanimously reversed, on the law and on the facts, and the information dismissed on the ground that the People failed to establish the guilt of defendant beyond a reasonable doubt. While the conduct of the defendant preceding his arrest indicated he was ill-mannered and boorish in that he appropriated the parking space with knowledge that the police detective had persuaded the operator of the taxi to unblock the parking space so that the police lieutenant might utilize it, this circumstance did not justify the purported arrest. Due to the private motivation of the police officers, the proof does not show beyond a reasonable doubt, whatever it may be for other purposes, that defendant was properly arrested or that he used excessive force in resisting an improper arrest. The court sympathizes with the indignities suffered by the officers consequent on the unwarranted and bellicose conduct of the defendant. Nevertheless, it is incumbent on a public servant to exercise self-restraint and in the case of personal involvement to issue either the approprate summons or request another police officer to take the appropriate action. (See N. Y. City Grim. Cts. Act, § 116, subd. h.) Under the circumstances, the guilt of defendant was not established beyond a reasonable doubt, the requisite burden to sustain a conviction for assault in the third degree. Concur — Breitel, J. P., Valente, McNally, Stevens and Bastow, JJ.