Opinion
2018-1378 RI CR
10-22-2021
The People of the State of New York, Respondent, v. Richard Cianci, Appellant.
New York City Legal Aid Society (Steven J. Miraglia of counsel), for appellant. Richmond County District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
Unpublished Opinion
New York City Legal Aid Society (Steven J. Miraglia of counsel), for appellant.
Richmond County District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Raja Rajeswari, J.), rendered May 31, 2018. The judgment convicted defendant, after a nonjury trial, of disorderly conduct, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Following a nonjury trial, defendant was convicted of disorderly conduct (Penal Law § 240.20 [5]) and was sentenced to a conditional discharge. On appeal, defendant contends that the accusatory instrument was jurisdictionally defective; that the evidence was legally insufficient; and that the verdict was against the weight of the evidence.
In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Jones, 9 N.Y.3d 259, 261-263 [2007]; People v Casey, 95 N.Y.2d 354 [2000]; People v Alejandro, 70 N.Y.2d 133 [1987]). The failure to meet the above requirements is jurisdictional and can be asserted at any time (see People v Casey, 95 N.Y.2d at 363; People v Alejandro, 70 N.Y.2d at 135), with the exception of the nonhearsay requirement, which, insofar as is relevant to this appeal, is waived if it is not timely raised by motion in the trial court (see People v Kalin, 12 N.Y.3d 225 [2009]; People v Casey, 95 N.Y.2d at 364-365).
Penal Law § 240.20 (5) provides that "A person is guilty of disorderly conduct "when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof... He obstructs vehicular or pedestrian traffic." For pleading purposes, the requisite mental state may be alleged on the basis of a logical implication of the act itself or upon the surrounding circumstances (see e.g. People v Bracey, 41 N.Y.2d 296, 301 [1977]; People v McGee, 204 A.D.2d 353 [1994]; People v Bishop, 41 Misc.3d 144[A], 2013 NY Slip Op 52063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As this court noted in People v Villegas (54 Misc.3d 137 [A], 2017 NY Slip Op 50134[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]):
"Critical to a charge of disorderly conduct is a finding that the defendant's disruptive behavior was of a public rather than an individual dimension (see People v Baker, 20 N.Y.3d 354, 359 [2013]; People v Weaver, 16 N.Y.3d 123, 127 [2011]). Consequently, a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes 'a potential or immediate public problem' (People v Munafo, 50 N.Y.2d 326, 331 [1980]). The risk of public disorder does not have to be realized, but the circumstances must be such that defendant's intent to create such a threat, or reckless disregard thereof, can be readily inferred (see Baker, 20 N.Y.3d at 360; Weaver, 16 N.Y.3d at 128; People v Todaro, 26 N.Y.2d 325, 329 [1970]; People v Kennedy, 19 N.Y.2d 761, 762 [1967] ['It is enough that disorder was threatened by defendant's conduct'])".
Defendant argues that the information is facially insufficient because the factual allegations do not show that he intended to create, or recklessly disregarded the risk of creating, public inconvenience, annoyance or alarm, and that his alleged actions caused no "public" harm. The relevant factual portions of the information state that, on New Year's day 2017, at about 3:50 p.m., in the vicinity of Richmond Road and New Dorp Lane in Staten Island, New York, the deponent police officer "observed defendant riding a bicycle in the above intersection, preventing motor vehicles from driving in the roadway... defendant rode a bicycle in front of deponent's marked police motor vehicle, cursing and yelling at deponent, stating in sum and substance, YOU'RE NOT GOING TO DO SHIT, YOU F[....] PUSSIES, causing deponent to have to brake several times." We find that these allegations adequately show that defendant obstructed vehicular traffic of the driving public at large, not just of the deponent police officer, by which defendant intended to create, or recklessly disregarded the risk of creating, public inconvenience, annoyance or alarm. As the allegations of fact are of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Jones, 9 N.Y.3d at 261-263; People v Casey, 95 N.Y.2d 354; People v Alejandro, 70 N.Y.2d 133), the information is not jurisdictionally defective.
Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review since, at trial, he failed to make the specific arguments he now raises on appeal (see CPL 470.05 [2]; People v Hawkins, 11 N.Y.3d 484, 491-492 [2008]; People v Hines, 97 N.Y.2d 56, 61 [2001]; People v Gray, 86 N.Y.2d 10 [1995]), and we decline to consider this contention in the interest of justice. Nevertheless, since there is no preservation requirement associated with defendant's contention that the verdict was against the weight of the evidence, this court must necessarily determine as part of its weight of the evidence review whether all of the elements of disorderly conduct were proven beyond a reasonable doubt in this nonjury trial (see People v Danielson, 9 N.Y.3d 342, 348-349 [2007]; People v Thiel, 134 A.D.3d 1237 [2015]). Since a different verdict would not have been unreasonable in the case at bar (see People v Zephyrin, 52 A.D.3d 543 [2008]), we "must, like the trier of fact below, 'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'" (People v Bleakley, 69 N.Y.2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]).
"[A] defendant may be guilty of disorderly conduct regardless of whether the action results in public inconvenience, annoyance or alarm if the conduct recklessly creates a risk of such public disruption" (People v Weaver, 16 N.Y.3d at 128; see also People v Todaro, 26 N.Y.2d at 329; People v Kennedy, 19 N.Y.2d at 762; People v Moye, 90 A.D.3d 472, 472 [2011]). The evidence adduced at trial showed that defendant, while riding his bicycle on a public roadway, zigzagged his bicycle from the sidewalk to the roadway in which numerous vehicles were located. He rode his bicycle against traffic, swerved in front of vehicles, slapped, punched and kicked numerous parked and moving vehicles as he rode his bicycle, and tilted the side view mirrors of vehicles, which caused motorists to try to avoid the defendant on his bicycle. Defendant also purposefully rode his bicycle in front of a police car which caused the police car to stop in traffic in order to avoid hitting defendant. We find that the aforementioned conduct, which clearly obstructed vehicular traffic, was sufficient to establish defendant's intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, in violation of Penal Law § 240.20 (5). Consequently, upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d at 348-349), while according great deference to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 N.Y.3d 888, 890 [2006]; People v Bleakley, 69 N.Y.2d at 495), we find that the verdict convicting defendant of disorderly conduct was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 643-646 [2006]).
Accordingly, the judgment of conviction is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.