Opinion
2014-07-24
The PEOPLE of the State of New York, Respondent, v. Lawrence ZUCKERBERG, Appellant.
Lawrence Zuckerberg, appellant pro se. Kenneth P. Thompson, District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.
Lawrence Zuckerberg, appellant pro se. Kenneth P. Thompson, District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.
Present: WESTON, J.P., PESCE and ALIOTTA, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Eugene Schwartzwald, J.H.O.), rendered June 11, 2012. The judgment convicted defendant, after a nonjury trial, of disorderly conduct.
ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine and surcharge, if paid, are remitted.
Defendant was charged with disorderly conduct (Penal Law § 240.20[1] ), in connection with an incident that occurred at the 61st Precinct in Brooklyn on February 17, 2012. At a nonjury trial, the arresting officer testified that he was in the precinct, processing another arrest, when defendant entered the precinct and spoke to the desk sergeant. Defendant asked how he could obtain a copy of a report regarding a prior arrest. The desk sergeant replied that defendant had to obtain the report from police headquarters in Manhattan. Defendant left the precinct. Shortly thereafter, defendant returned to the precinct. According to the arresting officer, defendant screamed “violently” at the desk sergeant. Defendant was told to leave. When he refused, he was arrested.
Defendant testified in his own behalf. He asserted, among other things, that he had entered the area of the precinct that was open to the public, and asked an employee, presumably a civilian employee of the police department, how he could obtain the report regarding his prior arrest. According to defendant, the prior case had been dismissed and sealed. The employee gave defendant a form, and he left the precinct. Shortly thereafter, defendant returned to the precinct, and asked the employee if he was “still gonna [ sic ] get a report or am I gonna [ sic ] go through all this and they'll tell me you can't have the report?” The employee replied that she did not know. At that point, the desk sergeant entered the public area of the precinct, yelled at defendant, and told him to “get out of here.” Moments later, at least three officers grabbed defendant from behind, threw him face down onto the floor, and handcuffed him.
Following the trial, the court found defendant guilty as charged.
Upon the exercise of our factual review power, we find that the verdict convicting defendant of disorderly conduct under Penal Law § 240.20(1) was against the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Under the facts and circumstances of this case, an acquittal would not have been unreasonable. Consequently, this court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court must decide whether the factfinder was justified in finding defendant guilty beyond a reasonable doubt ( see People v. Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Lane, 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2007]; People v. Whatts, 116 A.D.3d 456, 461, 983 N.Y.S.2d 253 [2014] ).
This court must accord the appropriate deference to the factfinder's credibility determinations, based on its opportunity to view the witnesses, hear their testimony, and observe their demeanor ( see People v. Mateo, 2 N.Y.3d 383, 415, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004]; People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Adilovic, 34 Misc.3d 159[A], 2012 N.Y. Slip Op. 50437[U], *3, 2012 WL 762568 [App.Term, 9th & 10th Jud.Dists.2012] ). Nevertheless, in this case, the arresting officer testified that only he and the desk sergeant were present when defendant returned to the precinct and started screaming. He did not testify that members of the public or other police officers were present. While “there is no per se requirement that members of the public ... be involved or react to the incident” (People v. Weaver, 16 N.Y.3d 123, 128, 919 N.Y.S.2d 99, 944 N.E.2d 634 [2011] ), there was nothing in the arresting officer's testimony regarding the effect of defendant's conduct on members of the public or other police officers, and the People presented no evidence that defendant intended to cause public inconvenience, annoyance or alarm, or that he recklessly created a risk of such public disruption ( see People v. Weaver, 16 N.Y.3d at 128, 919 N.Y.S.2d 99, 944 N.E.2d 634; People v. Tichenor, 89 N.Y.2d 769, 775, 658 N.Y.S.2d 233, 680 N.E.2d 606 [1997]; People v. Munafo, 50 N.Y.2d 326, 331–332, 428 N.Y.S.2d 924, 406 N.E.2d 780 [1980]; People v. Snyder, 36 Misc.3d 137[A], 2012 N.Y. Slip Op. 51434[U], *2, 2012 WL 3139759 [App.Term, 9th & 10th Jud.Dists.2012]; People v. Hanneman, 19 Misc.3d 73, 74, 860 N.Y.S.2d 788 [App.Term, 1st Dept.2008]; cf. Norasteh v. State of New York, 44 A.D.3d 576, 845 N.Y.S.2d 234 [2007]; People v. Brown, 116 A.D.2d 727, 729, 497 N.Y.S.2d 934 [1986] ). No evidence was presented that any members of the public were in the precinct or that “there was at least a risk” that members of the public “would observe the violent encounter and be alarmed thereby” (People v. Adilovic, 34 Misc.3d 159[A], 2012 N.Y. Slip Op. 50437[U], *3, 2012 WL 762568 [App.Term, 9th & 10th Jud.Dists.2012] ). The fact that the incident occurred in a police precinct, standing alone, does not establish that defendant intended to cause or recklessly created the risk of a public disturbance ( see generally People v. Baker, 20 N.Y.3d 354, 960 N.Y.S.2d 704, 984 N.E.2d 902 [2013]; People v. Fassinger, 42 Misc.3d 407, 410, 975 N.Y.S.2d 602 [Auburn City Ct.2013]; People v. Badue, 22 Misc.3d 137[A], 2009 N.Y. Slip Op. 50339[U], 2009 WL 531185 [App.Term, 9th & 10th Jud.Dists.2009]; see also Provost v. City of Newburgh, 262 F.3d 146, 157–158 [2d Cir.2001]; cf. People v. Gonzalez, 112 A.D.3d 440, 441, 975 N.Y.S.2d 874 [2013] ). Thus, the verdict of guilt was against the weight of the evidence.
In light of the foregoing, we need not address defendant's remaining contentions.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.