People v. Gavin

24 A.D.2d 656, 261 N.Y.S.2d 98, 1965 N.Y. App. Div. LEXIS 3634

Opinion

Reynolds, J.

Appeal from a judgment of conviction of the County Court, Ulster County, entered on a jury verdict finding the appellant guilty of the crimes of assault, second degree (Penal Law, § 242, subd. 5), "and assault, third degree (Penal Law, § 244, subd. 1). Appellant has been convicted of assaulting a police officer engaged in the process of lawfully apprehending him. He asserts here that his conviction is against the weight of the evidence and that the requisite criminal intent was not established. We cannot agree. The ease was submitted to the jury with a proper charge as to the burden on the People to prove both the commission of the assault and the existence of the necessary general and specific criminal intents involved in the crime charged. Under subdivision 5 of section 242 there need not be established an intent to inflict grievous bodily harm (cf. subds. 3, 4; People v. Katz, 290 N. Y. 361), just an intent to prevent “ lawful ” arrest. The question of lawfulness of the arrest was properly presented to the jury and is not raised here (cf. People v. Vest, 11 A D 2d 1080). We thus find no reason to disturb the jury’s verdict. Judgment affirmed. Gibson, P. J., Taylor, Aulisi and Hamm, JJ., concur.