116 Misc. 2d 332 | N.Y. App. Term. | 1982
OPINION OF THE COURT
Memorandum.
Judgment unanimously reversed, on the law, and new trial ordered.
Defendant was charged with obstructing governmental administration for attempting to free his brother from a police car after his brother had been arrested. At trial, defendant requested a jury instruction to the effect that he could not be convicted unless the jury found that the arrest of his brother was authorized. Such an instruction was not given.
In our view, the court erred in failing to give the requested instruction. Just as a defendant cannot be convicted of resisting arrest unless the People show that the arrest was lawful (see People v Stevenson, 31 NY2d 108; People v Harewood, 63 AD2d 876; People v Lyke, 72 Misc 2d
We have examined defendant’s other contentions and find them to be without merit.
Farley, P. J., Slifkin and Widlitz, JJ., concur.