The People of the State of New York, Respondent, v. Stephen Varnum, Appellant

The People of the State of New York, Respondent, v. Stephen Varnum, Appellant. [MAJORITY] Judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, convicting defendant of assault in the third degree, reversed on the law, information dismissed and defendant discharged. The defendant was in charge of the premises and had the right to resist the intrusion thereon of the complainant, who was seeking to take therefrom property left there while he had a lease of the premises which had expired. The resistance made by the defendant was reasonable under the circumstances shown and was not accompanied by any violent acts harmful to the complainant; and there was no evidence of intent to commit an assault. Whatever liability may exist in a civil action for damages, concerning which we express no opinion, the record discloses no crime under the provisions of section 244 of the Penal Law. Lazansky, P. J., Hagarty, Seudder, Tompkins and Davis, JJ., concur.