We are concerned on this appeal with a judgment convicting defendant of the crime of assault in the third degree in violation of subdivision 1 of section 244 of the Penal Law. The defendant assaulted a plain-clothes police officer, while the latter was attempting to effect a lawful and proper arrest of another. We are to determine whether the defendant’s ignorance of the officer’s police status and his erroneous belief that the detective was a civilian committing an unjustified assault upon the other person—who was a complete stranger to the defendant — excuses the crime. The majority of the court, in reversing the judgment of conviction, holds that defendant’s mistake removes the element of intent necessary for a criminal act.
I dissent and would affirm the conviction because the intent to commit a battery was unquestionably proven; and, since there was no relationship between defendant and the person whom the police officers were arresting, defendant acted at his peril in intervening and striking the officer. Under well-established law, defendant’s rights were no greater than those of the person whom he sought to protect; and since the arrest was lawful, defendant was no more privileged to assault the police officer than the person being arrested.
Under our statutes a specific intent is necessary for the crimes of assault in the first and second degrees (Penal Law, §§ 240, 242). (See People v. Katz, 290 N. Y. 361.) Generally, the assaults contemplated by those sections were known as “ aggravated ” assaults under the common law. (1 Wharton’s, Criminal Law and Practice [Anderson ed., 1957], § 358.) However, assault in the third degree is defined by subdivision 1 of section 244 of the Penal Law as an assault and battery not such *270as is specified in sections 240 and 242. No specific intent is required under section 244. All that is required is the knowledgeable doing of the act. “It is sufficient that the defendant voluntarily intended to commit the unlawful act of touching ’ ’ (1 Wharton’s, op. cit., § 338, p. 685).
In the instant ease, had the defendant assaulted the officer with the specific intent of preventing the lawful apprehension of the other person he would have been subject to indictment under the provisions of subdivision 5 of section 242 .of the Penal Law, which constitutes such an act assault in the second degree. But the inability to prove a specific intent does not preclude the People from establishing the lesser crime of assault in the third degree which requires proof only of the general intent ‘ ‘ to commit the unlawful act of touching ”, if such exists.
There is evidently no New York law on the precise issue on this appeal. However, certain of our statutes point to the proper direction for solution of the problem. Section 42 of the Penal Law provides: “ An act, otherwise criminal, is justifiable when it is done to protect the person committing it, or another whom he is bound to protect, from inevitable and irreparable personal injury”. Similarly, section 246, so far as here pertinent, provides:
“ To use or attempt, or offer to use, force or violence upon or towards the person of another is not unlawful in the following cases:
Ji. 41. .V-
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“ 3. When committed either by the party about to be injured or by another person in his aid or defense, in preventing or attempting to prevent an offense against his person, or a trespass or other unlawful interference with real or personal property in his lawful possession, if the force or violence used is not more than sufficient to prevent such offense ”.
These statutes represent the public policy of this State regarding the areas in which an assault will be excused or rendered “not unlawful” where one goes to the assistance of another. They include only those cases in which the other person is one whom the defendant “is bound to protect” (§ 42) or where the defendant is ‘‘ preventing or attempting to prevent an offense against” such other person (§ 246). Neither statute applies to the instant case since the other person herein was one unlawfully resisting a legal arrest — and hence no offense was being committed against his person by the officer — and he was not- an individual whom defendant was “ bound to protect ’ ’.
It has been held in other States that one who goes to the aid of a third person acts at his peril, and his rights to interfere dq *271not exceed the rights of the person whom he seeks to protect. (State v. Ronnie, 41 N. J. Super. 339; Griffin v. State, 229 Ala. 482; Commonwealth v. Hounchell, 280 Ky. 217; 6 C. J. S., Assault and Battery, § 93, p. 950; 1 Wharton’s, op. cit., § 352; 4 Am. Jur., Assault and Battery, § 54, p. 155.) We need not consider to what extent that rule is modified by section 42 of the Penal Law since there is no question here but that the person being arrested was not in any special relation to defendant so that he was a person whom defendant was ‘‘ bound to protect”. It follows then that there being no right on the part of the person, to whose aid defendant came, to assault the officer — the arrest being legal — defendant had no greater right or privilege to_assault the officer.
The conclusion that defendant was properly convicted in this case comports with sound public policy. It would be a dangerous precedent for courts to announce that plain-clothes police officers attempting lawful arrests over wrongful resistance are subject to violent interference by strangers ignorant of the facts, who may attack the officers with impunity so long as their ignorance forms a reasonable basis for a snap judgment of the situation unfavorable to the officers. Although the actions of such a defendant, who acts on appearances, may eliminate the specific intent required to convict him of a felony assault, it should not exculpate him from the act of aggressive assistance to a lawbreaker in the process of wrongfully resisting a proper arrest.
I do not detract from the majority’s views regarding commendation of the acts of a Good Samaritan, although it may be difficult in some cases to distinguish such activities from those of an officious intermeddler. But opposed to the encouragement of the ‘ ‘ benevolent intervenor ’ ’ is the conflicting and more compelling interest of protection of police officers. In a city like New York, where it becomes necessary to utilize the services of a great number of plain-clothes officers, the efficacy of their continuing struggle against crime should not be impaired by the possibility of interference by citizens who may be acting from commendable motives. It is more desirable — and evidently up to this point the Legislature has so deemed it — that in such cases the intervening citizen be held to act at his peril when he assaults a stranger, who unknown to him is a police officer legally performing his duty. In this conflict of interests, the balance preponderates in favor of the protection of the police rather than the misguided intervenor. A
The majority points to the recommendations of the American Law Institute in drafting a Model Penal Code which make the *272use of force justifiable to protect a third person when the actor believes his intervention is necessary for the protection of such third person (Model Penal Code, Tent. Draft No. 8, § 3.05, subd. [1], par. [c], p. 30). Obviously these are recommendations which properly are to be addressed to a Legislature and not to courts. The comments of the reporters on the Model Penal Code, from which the majority quotes, indicate (p. 31) that in the United States, the view is preserved in much State legislation that force may not be- used to defend others unless they stand in a special relationship to their protector. The reporters state: ‘ ‘ The simple solution of the whole problem is to assimilate the defense of strangers to the defense of oneself, and this the present section does ’ ’. If this be so, then even under the Model Penal Code, since the stranger, who is being lawfully arrested, may not assault the officers a third person coming to his defense may not do so. In any event, the Model Penal Code recognizes that the law as it now stands requires the conviction of the defendant herein. Until the Legislature acts, the courts should adhere to the well-established rules applicable in such cases. Such adherence demands the affirmance of the conviction herein.
Botein, P. J., and Bergan, J., concur with Breitel, J.; Valente, J., dissents and votes to affirm in opinion, iii which Eager, J., concurs.
Judgment of conviction reversed upon the law and the information dismissed.