People v. Felton

Appellate Division of the Supreme Court of New York

People v. Felton

171 A.D.2d 1034, 568 N.Y.S.2d 988, 1991 N.Y. App. Div. LEXIS 6759

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 8, 1991

StatusPublished

Cited by10 cases

This text of 171 A.D.2d 1034 (People v. Felton) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Felton, 171 A.D.2d 1034, 568 N.Y.S.2d 988, 1991 N.Y. App. Div. LEXIS 6759 (N.Y. Ct. App. 1991).

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Opinions

Order affirmed and indictment dismissed. Memorandum: We affirm for reasons stated in decision at County Court (Wisner, J.). We add that the People’s reliance on Penal Law § 35.27 on this suppression motion is misplaced. That section relates only to the defense of "[¡justification; use of physical force in resisting arrest prohibited” (Penal Law § 35.27) and, under the circumstances of this case, does not provide a substantive basis for the officer’s arrest or attempted arrest of defendant.

Furthermore, the indictment must be dismissed since the unsuccessful appeal by the People precludes all further prosecution of defendant for the charges contained in the accusatory instrument (see, CPL 450.50 [2j; Matter of Forte v Supreme Ct., 48 NY2d 179, 185-188; People v Casadei, 106 AD2d 885, 886, affd 66 NY2d 846).

All concur, except Lawton, J., who dissents and votes to reverse and deny the suppression motion, in the following Memorandum.

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Order affirmed and indictment dismissed. Memorandum: We affirm for reasons stated in decision at County Court (Wisner, J.). We add that the People’s reliance on Penal Law § 35.27 on this suppression motion is misplaced. That section relates only to the defense of "[¡justification; use of physical force in resisting arrest prohibited” (Penal Law § 35.27) and, under the circumstances of this case, does not provide a substantive basis for the officer’s arrest or attempted arrest of defendant.

Furthermore, the indictment must be dismissed since the unsuccessful appeal by the People precludes all further prosecution of defendant for the charges contained in the accusatory instrument (see, CPL 450.50 [2j; Matter of Forte v Supreme Ct., 48 NY2d 179, 185-188; People v Casadei, 106 AD2d 885, 886, affd 66 NY2d 846).

All concur, except Lawton, J., who dissents and votes to reverse and deny the suppression motion, in the following Memorandum.

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Bluebook (online)

171 A.D.2d 1034, 568 N.Y.S.2d 988, 1991 N.Y. App. Div. LEXIS 6759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-felton-nyappdiv-1991.

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