
    The People of the State of New York, Respondent, v. Joseph Tedesche, Appellant.
    First Department,
    February 26, 1957.
    
      
      Ira H. Holley for appellant.
    
      William Rand, Jr.; of counsel (Frank 8. Hogan, District Attorney, attorney), for respondent.
   Per Curiam.

The defendant, while in the custody of a police officer who told him he was under arrest, broke away and escaped. Through the interference of a crowd, the officer was prevented from immediately reapprehending the defendant or pursuing him. The charge for which the defendant was arrested was the illegal sale of fireworks, which is a misdemeanor by virtue of section 1894-a of the Penal Law.

Absent a warrant, a police officer may only arrest a defendant charged with a misdemeanor if the crime is committed in his presence (Code Crim. Pro. § 177; People v. Cherry, 307 N. Y. 308; People v. O’Connor, 257 N. Y. 473). Later that day, the defendant surrendered at a station house. He was thereafter arraigned upon the charge. The complaint was dismissed and the defendant discharged because the officer did not witness the alleged sale of the fireworks and the only witness who purportedly saw it could not be located. The defendant was then charged with escape from lawful custody (Penal Law, § 1694) and, after trial was convicted. There having been no legal arrest, the defendant was not in ‘ ‘ lawful custody ’ ’ within the meaning of the Penal Law, and his escape was not from the custody contemplated by section 1694. The judgment of conviction should therefore be reversed and the information dismissed.

Botein, J. P., Rabin, Frank, Valente and McNally, JJ., concur.

Judgment unanimously reversed and the information dismissed. Settle order on notice.  