Wednesday, September 24, 2008

Disorderly Conduct Requires More Than Inconvenience of Pedestrians

From Jim Eckert:

The Court of Appeals ruled last week on the sufficiency of an information charging Disorderly Conduct (standing on the sidewalk) and resisting arrest.

In People v Jones, __ NY3d __ [11/20/17] the court reaffirmed that an information has to allege sufficient facts to make out a prima facie case. The allegation which was held to be insufficient was:

he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] . . . deponent directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run.

The Court explained why these factual allegations in the information do not meethe burden on the People to make out its prima facie case for the offense charged in the text of an Information (CPL 100.15 [3] and CPL 100.40 [1])

Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm." The conduct sought to be deterred under the statute is "considerably more serious than the apparently innocent" conduct of defendant here (People v Carcel, 3 NY2d 327, 331-332 [1957]). Something more than a mere inconvenience of pedestrians is required to support the charge ( id. at 332). Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions or simply to regain one's bearings -- would be subject to prosecution under this statute ( see People v Nixon, 248 NY 182, 185-188 [1928][Those congregating on the street display "atrociously bad manners" by "discommod[ing] some other persons" but such conduct alone does not necessarily give rise to disorderly conduct]). 22 Both Carcel and Nixon involved Penal Law § 722, the predecessor statute to Penal Law § 240.20, which provided in part that "[i]n cities of five hundred thousand inhabitants or over any person who, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned . . . congregates with others on a public street and refuses to move on when ordered by the police" is guilty of disorderly conduct. Thus, as the information fails to set forth a prima facie case of disorderly conduct under Penal Law § 240.20 (5), the accusatory instrument is jurisdictionally defective and must be dismissed.

Also, since those allegations were insufficient, the charge of Resisting Arrest also had to be dismissed, since without sufficient facts for Disorderly Conduct, the information was also insufficient to show that the arrest was authorized.

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