The People of the State of New York, Respondent, v. George B. McNeil, Appellant, 21 A.D.2d 1

Per Curiam. Defendant was arrested by a uniformed police officer for “ jaywalking ” in violation of subdivision C of

section 42 of the Traffic Rules and Regulations of the City of New York. A mild argument ensued and the additional charge of disorderly conduct was placed against defendant at the time of his arrest. Appellant was placed in the rear of a police car and transported some four or five blocks to the precinct station. Some 15 minutes had then elapsed since defendant had been seen “ jaywalking ”. Defendant was ordered out of the vehicle by the arresting officer and at first refused. When he did get out he struck the officer twice with his clenched fist.

An additional charge of felonious assault was then placed against appellant. Upon a combined trial of the lesser charges and preliminary examination of the felony count defendant was convicted of the “ jaywalking ” charge, acquitted of disorderly conduct and the felony charge was reduced to assault, third degree, Upon appeal the “jaywalking” conviction was reversed and the complaint dismissed upon a finding that the guilt of the defendant had not been established beyond a reasonable doubt.

The present appeal grows out of an information charging defendant in four counts of assault, third degree, and violations of sections 1824, 1851 and 1825 of the Penal Law. Following a trial appellant was convicted of the counts of assault, third degree and violation of

section 1825 in that he resisted by force and violence a police officer in the performance of his duty. Defendant contends that his prior acquittal of both “jaywalking ’ ’ and disorderly conduct for which he was arrested 41 established the arrest to have been unlawful, and he was therefore entitled to resist such an arrest with reasonable force (People v. Cherry, 307 N. Y. 308).” (People v. Dreares, 15 A D 2d 204, 206, affd. 11 N Y 2d 906.) We do not agree with this contention.

Conceding that the arrest was unlawful defendant had the right to resist and use “ force and violence ” against the officer ‘ ‘ in preventing or attempting to prevent an offense against his person ” provided such “ force or violence used [was] not more than sufficient to prevent such offense ” (Penal Law, § 246, subd. 3). But the right to employ such combative tactics must be found to terminate at some point before the arraignment of a defendant in court when the proceeding becomes valid without regard to the legality of the arrest (People v. Iverson, 46 App. Div. 301; United States of Amer. ex rel. Farnum v.

McNeill, 157 F. Supp. 882, 886). In other words, an illegal arrest may properly be resisted but it does not clothe the one wrongfully detained with the right to continue indefinitely an assaultive course of conduct. The acts of appellant fell within the single limitation of the right to resist an unlawful arrest “ that the victim may not pursue his counterattack merely for the sake of revenge or the infliction of needless injury” (People v. Cherry, supra, p. 311). The judgment of conviction should be affirmed.