Judgment reversed and information dismissed. The physical attack on the arresting policeman was a part of resistance to an unlawful arrest (People v. Dreares, 15 A D 2d 204, affd. 11 N Y 2d 906) and it was not excessive in degree (People v. Cherry, 307 N. Y. 308). On the People’s proof in support of an assault, it appears that the physical attack attributed to defendant was not an unrelated occurrence but was in close sequence to and a part of resistance to the arrest.
Concur: Chief Judge Desmond and Judges Fold, Van Voorhis, Burke and Bergan. Judges Dye and Scileppi dissent and vote to affirm.