## Facts

- Two plain-clothes police officers observed Cherry near a building where he lived for about 30 minutes, during which he did nothing improper or suspicious.
- The officers approached, identified themselves as police, and asked Cherry for identification.
- Cherry doubted they were officers and asked to see badges; he then attempted to leave.
- As Cherry tried to run, one officer grabbed him from behind around the shoulders; a struggle followed.
- During the struggle, Cherry grabbed the officer’s wrist and bit the officer’s thumb.
- Another officer arrived; Cherry was subdued, arrested without a warrant, and charged with third-degree assault based on the bite.
- There was no evidence Cherry committed an offense in the officers’ presence and no reasonable grounds to believe he had committed a felony; the officers’ attempted arrest and physical restraint were unlawful.

## Issues

1. Whether a defendant may be convicted of assault for using force against police officers while resisting an unlawful warrantless arrest and unlawful physical assault by those officers.
2. Whether, and to what extent, a person may use reasonable force to resist an unlawful seizure by plain-clothes officers whose authority is not credibly established at the moment of the encounter.

## Decision

- The New York Court of Appeals reversed the conviction for assault in the third degree.
- The court treated the officers’ conduct as an illegal arrest and an unlawful assault.
- Given that illegality, Cherry’s responsive force during the struggle could not properly serve as the basis for a criminal assault conviction on this record.

## Legal Principles

- A warrantless arrest lacking statutory justification (no offense in the officer’s presence and no reasonable cause to believe a felony was committed) is unlawful, and physical restraint in effectuating such an arrest may constitute an assault.
- A person confronted with an unlawful arrest accompanied by unlawful force may use reasonable force to resist; responsive force is evaluated in light of the suddenness and wrongfulness of the seizure.
- Officers may not convert their own unlawful violence or unlawful restraint into a criminal assault charge when the defendant’s conduct is reasonably connected to resisting that unlawful conduct.
- The permissibility of resistance depends on reasonableness and proportionality under the circumstances, including the manner of the seizure and the apparent authority of the would-be arresting persons.

## Conclusion

The court vacated Cherry’s assault conviction because the plain-clothes officers attempted an unlawful arrest and committed an unlawful assault, and Cherry’s limited force in resisting that sudden, unauthorized seizure could not, on these facts, be treated as criminal assault.


People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238 (N.Y. 1954)