Judgment of conviction for the crimes of assault in the third degree and unlawful possession of a narcotic drug (Penal Law, § 1751-a), unanimously reversed, on the facts and the law, and the informations dismissed. The arrest of defendant was made on the original charge of the misdemeanor of injury to property — breaking a window in a nearby bar. Defendant's arrest was effected without a warrant for an alleged misdemeanor not committed in the presence of any of the arresting officers. The arrest was illegally made; and so the feeble resistance offered by defendant — resulting, as the District Attorney acknowledges, in more damage to defendant than to the officers — was fully justified under the circumstances ( People v. Cherry, 307 N.Y. 308; People v. O'Connor, 257 N.Y. 473; People v. Dreares, 15 A.D.2d 204, affd. 11 N.Y.2d 906). Therefore, the charge of assault in the third degree, based as it is on defendant's resistance to arrest by one of the police officers, must fall. A search of defendant's person after the arrest revealed the narcotics which are the subject of the third information. The search was not incidental to a lawful arrest and defendant's motion during trial to suppress evidence of possession of said narcotics should have been granted and this information dismissed ( Mapp v. Ohio, 367 U.S. 643; People v. Loria, 10 N.Y.2d 368).
Concur — Botein, P.J., Breitel, Rabin, Stevens and Eager, JJ.