
    The People of the State of New York, Respondent, v. Ronald Babchak, Appellant.
   Judgment unanimously reversed on the law and facts and a new trial granted. Memorandum: Defendant appeals from a judgment convicting him of the crime of assault second degree, in violation of subdivision 5 of section 242 of the Penal Law, on the ground that he assaulted a police officer. Defendant claims that the assault was an effort to prevent his unlawful apprehension. He was arrested in a tavern after he interrupted a conversation between the arresting officer and a bartender by asking the officer in obscene language why he did not mind his own business and nudged the officer in the arm. The officer testified; “After he struck me with his elbow * * * I told bim he was under arrest for being disorderly and using profanity”. The trial court instructed the jury that they must be satisfied that defendant was legally arrested for using profane language and being disorderly, but failed to give the jury any statutory definition of the underlying offense and failed to explain the nature thereof, saying only that it was a violation of the city ordinances. The court refused to charge at defendant’s request, pertinent provisions of the ordinances and refused to charge “ that any arrest * * * must be based upon some violation of these provisions ”. Such refusals constituted reversible errors. (People v. Lewis, 13 A D 2d 714.) The court erred in permitting the District Attorney, over objection, to question defendant about being charged with the crime of assault, second degree, in two prior instances when he was convicted of assault, third degree. The error was compounded by the District Attorney in his summation, by saying: “Ask yourselves further whether or not a person who has been convicted of a crime, not any crime but assault in the third degree, reduced from assault in^ the second degree, a felony * * * is worthy of your belief.” (Appeal from judgment of Erie County Court, convicting defendant of assault, second degree.)

Present — Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.  