People v. Collins

103 A.D.2d 781, 477 N.Y.S.2d 418, 1984 N.Y. App. Div. LEXIS 19398

Opinion

■— Appeal by defendant from a judgment of the Supreme Court, Queens County (Lonschein, J.), rendered February 4, 1983, convicting him of attempted robbery in the second degree, assault in the second degree and resisting arrest, upon a jury verdict, and imposing sentence. 11 Judgment modified, on the law, by reversing the conviction on count four of the indictment (resisting arrest) and the sentence imposed thereon is vacated. As so modified, judgment affirmed and the matter is remitted to the Supreme Court, Queens County, for a new trial on that count. H It was error for the trial court to omit, from its supplementary jury instruction, the element of intent, which the People were required to prove beyond a reasonable doubt in connection with the charge of resisting arrest (People v Katz, 290 NY 361; People v Zurita, 76 AD2d 871; People v Satisfield, 68 AD2d 817). Moreover, the court did not attempt to correct the charge even after defense counsel raised a serious question as to whether the proper instruction had been given. Nor can it be said that under the circumstances the error was harmless (cf. People v Davis, 73 AD2d 674). We have reviewed defendant’s other contentions and find them to be without merit. Lazer, J. P., Weinstein, O’Connor and Lawrence, JJ., concur.