138 Misc. 542 | New York Court of Special Session | 1930
This is an appeal from a conviction of disorderly conduct. The appellant is charged with using threatening, abusive and insulting behavior, with intent to provoke a breach of the peace in that on May 8, 1930, at premises 1397 Broadway, he interfered with the complaining witness, a police officer, in the performance of his duties while he was making an arrest.
The officer testified he had a prisoner under arrest in the premises 1397 Broadway, a cigar store. It would seem that the arrest was made at some other place but that the prisoner was taken into the store in order that the officer might make use of the telephone.
The appellant, a reputable member of the bar, was in the store.
The circumstances leading up to the arrest of the appellant are briefly stated by the officer in his testimony as follows: “ At eight
It is very probable that the cause of the arrest was not interference on the part of the appellant, but was due to the taking of the officer’s shield number. Even if this should not be the reason for the arrest of the appellant there is not sufficient evidence of interference in the testimony to justify an arrest of the appellant nor a charge of disorderly conduct. Real interference by a bystander with an arrest is reprehensible and deserves punishment but such interference is not present in this case.
Judgment reversed on the law only; facts examined and no errors found therein. Complaint dismissed. Fine ordered refunded.
Healy, J., concurs; Herbert, J., dissents and votes for affirmance.