People v. Howlett — 76 Misc. 2d 801

Majority

p. 801

The People of the State of New York, Respondent, v. George Howlett, Appellant.

Supreme Court, Appellate Term, First Department,

December 17, 1973.

William E. Heller stein, Robert Kasanof and Robert H. Claridge for appellant. Mario Merola, District Attorney (Robert M. Cohen of counsel), for respondent.

Defendant was entitled to a trial by jury on a charge of resisting arrest (Penal Law, § 205.30). It was error to reduce the charge, on the People’s motion, to a hypothetical charge of attempted resisting arrest (Penal Law, §§ 110.00, 205.30) which deprived him of the right to a jury, in violation of due process of law. The conviction on the reduced charge should therefore, be reversed.

Inasmuch as the sentence imposed a period of probation of three years on the conviction for both attempted resisting arrest and harassment, the case should be remanded for resentence on the conviction of harassment.

Judgment modified to the extent of reversing on the law so much thereof as convicted defendant of attempted resisting arrest, and dismissing the complaint on that charge, and reversing the judgment of conviction for harassment on the law as to the sentence and remanding the case for resentence, and, as modified, affirmed,

Concur — Quinn, J. P., Lupiano and Fine, JJ.

Judgment modified, etc.