People v. McNeil , 21 A.D.2d 1 ( 1964 )

Botein, P. J. (concurring in result).

I vote to affirm, although I am not prepared to say that the officer’s detention of defendant had progressed to a point where its termination by the use of reasonable force became improper. By viewing 1 ‘ the physical necessities of the situation presented” (People v. Cherry, 307 N. Y. 308, 311), as this record discloses them, triers of the facts might fairly conclude that flight was as available as force and that the latter was chosen “ merely for the sake of revenge or the infliction of needless injury ” {id.). Defendant’s testimony that he at no time used force hardly fortifies a contention that he used it of necessity.