People v. Samon

31 Misc. 2d 975, 221 N.Y.S.2d 277, 1961 N.Y. Misc. LEXIS 2013

• Court: New York County Court, Herkimer County
• Decided: November 28, 1961
• Status: Published

Opinion

Edward A. McCarthy, J.

This is an appeal from a judgment of a Court of Special Sessions in the Town of Schuyler (G-eqrge Luther, J.) wherein the defendant was convicted of the crime of forcible entry and detainer in violation of section 2034 of the Penal Law of the State of New York, upon which conviction he was fined $50 and the payment of which was suspended.

The essence of the violation of this section of the Penal Law involves the ‘ ‘ using or procuring another to use any force or violence in entering upon or in detaining any other lands.” The force envisioned by the statute implies a physical force exerted on persons. The violence denotes the unjust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage, or fury. It also envisions an assault, strength or energy such as the violence of an attack.

Broadly, it is the exertion of any physical force considered with reference to its effect on another as in warfare. A mere trespass not accompanied by such force and violence is insufficient to make out a case of forcible entry. As to forcible detainer, mere words are insufficient. Personal violence must be shown.

Consequently, the motion of the defendant for dismissal should have been granted upon the merits. The appeal taken herein is hereby allowed, the conviction reversed and no fine having been paid, there is no reason for any remission of the same. This decision and determination is being made upon both the law and the facts in this case.