People v. Felton

Order affirmed and indictment dismissed. Memorandum: We affirm for reasons stated in decision at County Court (Wisner, J.). We add that the People’s reliance on Penal Law § 35.27 on this suppression motion is misplaced. That section relates only to the defense of "[¡justification; use of physical force in resisting arrest prohibited” (Penal Law § 35.27) and, under the circumstances of this case, does not provide a substantive basis for the officer’s arrest or attempted arrest of defendant.

Furthermore, the indictment must be dismissed since the unsuccessful appeal by the People precludes all further prosecution of defendant for the charges contained in the accusatory instrument (see, CPL 450.50 [2j; Matter of Forte v Supreme Ct., 48 NY2d 179, 185-188; People v Casadei, 106 AD2d 885, 886, affd 66 NY2d 846).

All concur, except Lawton, J., who dissents and votes to reverse and deny the suppression motion, in the following Memorandum.