206 Misc. 935 | New York City Magistrates' Court | 1954
The defendant is charged with the crime of assault in the third degree, committed on the 23d day of October, 1954, “ In that while deponent was trying to keep a prisoner from escaping from deponent’s custody this defendant did strike deponent with his clenched hands upon deponent’s face and body ”.
The complaining witness, Edward D. Nigro, testified that he is a police officer of the City of New York, connected with the Brooklyn headquarters; that on the 23d day of October, 1954, about 4:15 a.m., he observed one Albert Gallo in the vicinity of 112 Beverly Road, Brooklyn; that said Albert Gallo talked to five or six groups of people, in all about ten people; that he directed Gallo into the second floor of the above-named premises; that he and three other police officers followed Gallo in; that when he got upstairs, he identified himself to Albert Gallo, and that while “ restraining ” Albert Gallo, the defendant, Joseph Gallo, a brother of Albert Gallo, struck him twice. The officer further testified that he and three fellow officers were in civilian clothes; that he did not inform the defendant, Joseph Gallo, that he was a police officer, nor did anybody make that statement in his presence; and that he had no warrant for the arrest of Albert Gallo, nor did he have a search warrant. That, in substance, is the People’s case.
The arrest and detention of Albert Gallo was without a warrant. The officer’s testimony is that he saw Albert Gallo talk
Section 246 bears the significant and eloquent caption: “ Use of force not unlawful in certain cases ” and provides such force or violence may be used not only by the one immediately aggrieved but also " by another person in his aid or defense The situation would be the same had the police in the Cherry and instant cases been in full regalia, because, as Judge Fuld wrote for the majority (p. 310): " Whether or not the police officers exhibited their badges to defendant is completely beside the point. A badge may not substitute for a warrant of arrest, nor excuse its absence, when one is required.” The legal maxim that one is presumed to know the law extends to the police. In this and the Cherry case the police officers were in plain clothes, " they appeared out of the night on a deserted street in Brooklyn ”, in each case the defendant was observed in conversation with unknown persons, in each case there was apprehension notwithstanding the fact there was no crime committed in the presence of the police. Here, the police went further than in the Cherry case. Albert Gallo preceding