The defendant stands before the court, charged with a violation of section 1851 of the Penal Law.
On August 21, 1967, at approximately 3:30 in the forenoon thereof, the arresting officer, Patrolman Rebollal, came upon the defendant on Clarke Street, in the Hamlet of Brentwood, Town of Islip, County of Suffolk and State of New York. Three other individuals were nearby. Rebollal ordered the defendant to drop the can of beer which he had in hand, and directed him to leave. The defendant failed to comply with Rebollal's directive. In the interim, another police officer, Patrolman Franco, had arrived upon the scene: he heard Rebollal's remarks addressed at the defendant.
Thereupon Rebollal left his police vehicle. He told defendant that he was under arrest for disorderly conduct and for violation of an ordinance of the Town of Islip. When the defendant failed to place his hands upon the police vehicle, as Rebollal told him to do, Rebollal proceeded to place handcuffs upon the defendant. A scuffle ensued. Franco came to Rebollal's assistance.
It is interesting to note that both officers were in full uniform; they drove clearly marked police vehicles.
Thereafter three charges were preferred against defendant:
1. The violation of a Town of Islip ordinance -- the consumption of an alcoholic beverage in a public place.
2. Disorderly conduct in violation of section 722 (subd. 1) of the Penal Law.
3. Interference with a public officer contrary to section 1851 of the Penal Law.
The defendant moved to dismiss the first charge. The motion was granted because the Town Ordinance in question was held unconstitutional.
The disorderly conduct charge was tried. The information was amended so as to charge subdivision 3, rather than subdivision 1. After trial, the defendant was found not guilty.
There has been a trial as to the third charge. Defendant now contends that, since the charge involving the alleged violation of the Town of Islip Ordinance was dismissed on motion, and since the disorderly conduct charge resulted in a finding of not guilty after trial, the base upon which the charge of violation of section 1851 of the Penal Law rests must fall -- since the ensuing arrest was illegal. He argues that, the arrest being illegal, the violation could not logically follow. He cites four cases to support his position.
In People v. Richter (265 App. Div. 767, 769) inspectors employed by the New York City Department of Markets attempted to seize a diamond ring; they desired to verify the weight thereof to support a possible charge of a violation of the Penal Law.
"The inspectors conceded that at that time they did not intend to make an arrest. They admitted that they were then unable to tell whether Penal Law, section 421, which prohibits false advertising, had been violated, and could not know whether this was so until the ring had been examined by an expert, and the stone weighed. In order to verify their suspicions that a crime might have been committed, they expressed their intention to take the ring out of the store, and to bring it to the office of an expert jeweler ...