People v. Knapp

Per Curiam.

Appeal from a judgment of the Delaware County Court convicting appellant of the crime of assault, second degree (Penal Law, § 242, subd. 5).

At about 3:45 a.m., on the morning of August 7, 1960, State troopers patrolling Route 17 observed a car driven by appellant cross a double white line in attempting to pass another vehicle. Pursuing the car the troopers overtook it, pulled along side and signalled appellant to stop his vehicle. Instead appellant accelerated, forced the troopers’ car onto the shoulder and sped off. A wild chase ensued covering a distance of roughly 125 miles through portions of Sullivan and Delaware Counties at speeds as high as 70 to 100 miles per hour. During the chase roadblocks were established to apprehend appellant. At the first two roadblocks which appellant encountered on his spree, Police Officer McClenathan of the Village of Walton had parked his car, with its red light flashing, in the lane adjacent to the lane in which the appellant was proceeding and stood in the traffic lane waving a flashlight back and forth to indicate that appellant should stop. At both roadblocks appellant not only failed to slow down from his 65 to 70 miles per hour speed but failed to swerve at all, requiring Officer McClenathan to jump from the path of the oncoming vehicle. When finally apprehended appellant was taken before Justice of the Peace Baldwin in Downs-ville where he plead guilty to driving a motor vehicle while his license was revoked, which plea of guilty to the underlying misdemeanor was proven at the trial. (Cf. Squadrito v. Griebsch, 1 N Y 2d 471.) Later he was taken to Walton and arraigned before the Police Justice of the Village of Walton on a charge of assault, second degree, in violation of subdivision 5 *67of section 242 of the Penal Law arising from his running through the second roadblock set up by Officer McClenathan. Subsequently he was indicted and after trial by jury convicted on this charge.

Appellant contends that the record does not warrant his conviction for assault, second degree. We cannot agree. There is ample evidence in the record to substantiate the jury’s finding that appellant in fact committed an assault on Officer McClenathan and that he possessed the requisite criminal intent at the time he committed the assault. Concededly, appellant plead guilty to driving without a license. In fact, he stated it was his fear of being picked up for this offense, for which he had been convicted on at least four previous occasions, the last two convictions resulting in a suspended jail sentence which he was warned he would have to serve if he were picked up again, which prompted him to try to evade the State troopers. In addition appellant admitted at his trial not only that he was speeding throughout the chase and specifically when he went through the first and second roadblocks established by McClenathan but also that in fact he had crossed the double white line in the presence of the troopers, which violation precipitated the chase. On this state of the record appellant was subject to lawful apprehension at the time he assaulted Officer McClenathan, such violation, among others, having been committed in his presence (see Code Crim. Pro., § 177; Squadrito v. Griebsch, supra) and thus subdivision 5 of section 242 was properly invoked. No exception was taken to the charge nor was it mentioned by defendant’s counsel or urged as erroneous by defendant’s counsel in his brief or on oral argument. We regard any errors as insubstantial. We find no merit to appellant’s contentions that there was any merger or double jeopardy, the sole contentions raised.

The judgment of conviction should be affirmed, without costs.