Defendant, because he had been illegally arrested, had the right to resist arrest and the false imprisonment which ensued (Penal Law, § 246, subd. 3; Restatement, Torts, § 68). The illegal arrest and false imprisonment continued at least until arraignment (Warner v. State of New York, 297 N. Y. 395, 400).
This was not a case of excessive or protracted counterattack to which the court referred in People v. Cherry (307 N. Y. 308, 311). On the prosecution evidence, defendant is entitled to be free of the conviction. The police officer said defendant struck him with his fist only when the policeman ordered him out of the police automobile and into the police station. The civilian witness for the prosecution testified that defendant struck the officer only when the defendant was ordered into the station house. The policeman sustained no injuries. It was in the station house, according to defendant, that defendant sustained a fractured jaw but the police never claimed that this was the place or the occasion of resistence to the arrest or confinement. It is difficult to see how this record would support a finding *4that defendant was the one who was guilty of pursuing a counterattack for the “ sake of revenge or the infliction of needless injury.”
Accordingly, I dissent and vote to reverse the judgment of conviction and dismiss the information.
Babin, Steuer and Bastow, JJ., concur in Per Curiam opinion; Botein, P. J., concurs in result, in opinion; Breitel, J., dissents and votes to reverse, in opinion.
Judgment of conviction affirmed.