People v. Berard

Judgment unanimously modified on the law and as modified affirmed and defendant remanded to Niagara County Court for resentencing, in accordance with the following memorandum: Defendant’s conviction for escape in the second degree (Penal Law § 205.10 [2]) cannot be sustained because the People failed to prove that at the time of defendant’s escape he had been lawfully arrested for a felony (People v Jeffries, 129 AD2d 962, 963; People v Warren, 103 AD2d 760). The proof, however, was sufficient to support conviction for the lesser included offense of escape in the third degree (Penal Law §…