Opinion
01 Civ. 3227 (RCC)
July 20, 2001
OPINION AND ORDER
Petitioner John McDermott brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in New York State Supreme Court of the crimes of assault in the second degree (unintentional injury to a police officer resulting from interference with an official duty), resisting arrest and obstructing governmental administration in the second degree, arising from a confrontation between Petitioner and the police that took place in midtown Manhattan on May 15, 1998. Petitioner was sentenced to 90 days in jail and 5 years probation. Petitioner's term of incarceration is currently stayed by stipulation of the parties pending decision by this Court.
Petitioner challenges the sufficiency of the evidence introduced against him at trial. Under New York law, in order to establish Petitioner's guilt of the three crimes at issue, the People were required to prove that the police acted lawfully. In other words, the police must have had probable cause when they arrested Petitioner for disorderly conduct during the confrontation. See People v. McDermott, 279 A.D.2d 361, 361, 719 N.Y.S.2d 76, 77 (1st Dep't 2001). Under the New York penal code, a person commits disorderly conduct when he or she engages in certain proscribed actions, such as fighting or using obscene language, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof." N.Y. Penal Law § 240.20(2000). Petitioner argues that the evidence was insufficient to support a finding of probable cause because there was no testimony at trial regarding whether any members of the public observed his behavior. See, e.g., People v. Munafo, 50 N.Y.2d 326, 331, 406 N.E.2d 780, 783, 428 N.Y.S.2d 904, 926(1980) (holding that "the disruptive behavior proscribed by [the] disorderly conduct statute must be of public rather than individual dimension").
I. BACKGROUND
A brief summary of the People's evidence is useful. On May 15, 1998, the police cordoned off portions of Park Avenue due to a visit from the Israeli Prime Minister. The police also established a "frozen zone" from the south side of 65th Street to the north side of 66th Street. Pedestrians were permitted to cross Park Avenue at 65th Street, but only from the southeast corner to the southwest corner, and vice versa. Approximately 50 police officers and other federal agents were stationed in the vicinity. Trial Transcript ("Tr.") at 204.
At around 9:15 p.m., Officer Loffredo was on foot patrol near the northwest corner of 65th Street. Id. at 202. She directed three pedestrians to cross on the south side of the street, and they complied.Id. at 206. A few minutes later, Petitioner began to cross on the north side of the street, moving toward the frozen zone. Id. at 205-06. Petitioner ignored Officer Loffredo's direction to cross on the other side, and pushed her out of the way. Id. at 206-07. Other officers ran to assist Officer Loffredo and a struggle ensued. Id. at 207-08. Petitioner yelled, cursed at the officers and waved his hands. Id. The officers moved Petitioner to the south side of the street, but Petitioner turned and ran back to the north side, screaming obscenities. Id. at 209, 235, 255-57. Petitioner was then placed under arrest for disorderly conduct.Id. at 320-21. During the arrest, Petitioner continued to struggle, injuring an officer's thumb. Id. at 257-59, 321. There was no testimony at trial regarding whether any civilians observed the Petitioner's interaction with the officers.
II. DISCUSSION
At issue here is whether the evidence was sufficient to establish beyond a reasonable doubt that the police had probable cause to arrest the Petitioner for disorderly conduct. In other words, the existence of probable cause is an element of Petitioner's convictions. The Due Process Clause of the Fourteenth Amendment prohibits conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." In re Winship, 397 U.S. 358, 364(1970). However, the Petitioner bears a heavy burden in challenging the sufficiency of the evidence against him. See Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000).
Under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 324(1979), a defendant is entitled to habeas relief on sufficiency grounds only if no rational juror could have found the defendant guilty based upon the record evidence. In other words, the conviction must be upheld if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Malsh v. Hanslmaier, 102 F.3d 69, 70 (2d Cir. 1996) (quoting Jackson, 443 U.S. at 319); see also United States v. Samaria, 239 F.3d 228 (2d Cir. 2001). The Court must view the evidence, whether direct or circumstantial, in the light most favorable to the government and draw all inferences in the government's favor. United States v. McDermott, 245 F.3d 133, 136 (2d Cir. 2001). Moreover, the task of choosing among competing, permissible inferences is for the fact-finder, not for the reviewing court. Id.
In addition, the government argues that the Antiterrorism and Effective Death Penalty Act ("AEDPA") further limits the inquiry where the state courts have adjudicated the issue on the merits. See 28 U.S.C. § 2254(d). In such situations, the federal court is not empowered to overturn that decision unless it was contrary to, or an unreasonable application of, clearly established federal law. Id. Here both the trial judge and the New York Appellate Division considered Petitioner's sufficiency claim and rejected it. The Appellate Division concluded that "the evidence established that the officer had probable cause to believe that defendant intended to cause public inconvenience, annoyance or alarm based on defendant's obstreperous behavior on a midtown Manhattan street corner." McDermott, 279 A.D.2d at 361, 719 N.Y.S.2d at 77; see also People v. McDermott, No. 242/99, slip op. at 9 (N.Y.Sup.Ct. Nov. 10, 1999) (denying motion to vacate on the basis that "the trial record contains ample evidence that probable cause did exist to arrest the defendant on [the disorderly conduct] charge, given the defendant's disruptive behavior, screaming of obscenities and physical interaction with the officers as he attempted to twice make his way into the frozen security zone").
The government argues that the state court determinations merit deference pursuant to § 2254(d). However, a recent Second Circuit decision entitled Washington v. Schriver, ___ F.3d ___, 2001 WL 674248, at *6-7 (2d Cir. June 15, 2001), suggests that narrow AEDPA review may not be appropriate where, as here, the state courts did not refer to or rely upon federal law. In any event, the petition must be denied even without reference to the AEDPA because Petitioner cannot meet theJackson standard.
Even assuming, as Petitioner contends, that the People must establish the actual nature and number of onlookers in order to support a conviction or information on a disorderly conduct charge, the same showing is not necessarily required to support an arrest. Probable cause is a less stringent standard; the arresting officer needs only a reasonable belief that Petitioner more probably than not committed the crime. See e.g., People v. Simpson, 244 A.D.2d 87, 90-91, 676 N.Y.S.2d 552, 554-55 (1st Dep't 1998). The New York Appellate Division has recognized that, even where the trial evidence does not directly establish a public presence so as to allow a conviction, an arrest for disorderly conduct nonetheless may be deemed lawful:
Indeed, the vast majority of the cases cited by Petitioner involve challenges to convictions or informations, not arrests. See, e.g., People v. Tarka, 75 N.Y.2d 996, 556 N.E.2d 1073, 557 N.Y.S.2d 266(1990) (information); People v. Alejandro, 70 N.Y.2d 133, 511 N.E.2d 71, 517 N.Y.S.2d 927(1987) (information); People v. Munafo, 50 N.Y.2d 326, 428 N.Y.S.2d 904, 406 N.E.2d 780(1980) (conviction); People v. Hall, 48 N.Y.2d 927, 401 N.E.2d 179, 425 N.Y.S.2d 56(1979) (information);People v. Canner, 88 Misc.2d 85, 388 N.Y.S.2d 812 (2d Dep't App. Term 1975) (conviction); People v. Palmer, 176 Misc.2d 813, 674 N.Y.S.2d 566 (N.Y. Crim. Ct. 1998) (information); People v. Gingello, 67 Misc.2d 224, 324 N.Y.S.2d 122 (Rochester Crim. Ct. 1971) (conviction). Moreover,Wilson v. Roberson, No. 92 Civ. 2709, 1996 WL 63053 (S.D.N.Y. Feb. 14, 1996), the chief case invoked by Petitioner where an arrest for disorderly conduct was called into question, is procedurally and factually inapposite. In Wilson, a false arrest suit brought pursuant to 42 U.S.C. § 1983, the district judge merely denied the defendants' summary judgment motion because a factual dispute existed as to the public presence issue; the plaintiff had alleged that the behavior in question took place on a deserted block in the early morning hours in January with no onlookers present. Id. at * 2-3. of course, the summary judgment standard applicable in Wilson required the district judge to draw all inferences in the plaintiff's favor, whereas here, the habeas standard requires this Court to draw all inferences in the government's favor. See Jackson, 443 U.S. at 319.
The District Attorney concedes that the trial evidence lacked proof of the necessary element of "public" disturbance to support the disorderly conduct convictions. However, it does not follow that the police were not performing a lawful duty in making the disorderly conduct arrest. Defendant contends that the conviction for attempted assault in the second degree lacks proof of the necessary element of intent. The issue here, however, is not whether an actual public inconvenience has been proven, but whether the officer could have reasonably believed that defendant's behavior constituted a public disturbance. In our view, the yelling and fighting in the hallway of a four-unit apartment building at 2:30 in the morning provided sufficient reason for the officers to effect the arrest.People v. Early, 85 A.D.2d 752, 752, 445 N.Y.S.2d 252, 254 (3d Dep't 1981) (internal citations omitted).
With respect to the evidence at issue here, a rational juror could have found that probable cause existed. The record reflects that Petitioner shouted obscenities and engaged in violent conduct on a public thoroughfare in midtown Manhattan on a May evening. Although there was no direct evidence at trial as to whether any passers-by observed Petitioner's behavior, there was testimony that three people were present at the street corner a few minutes earlier. Tr. at 206. Drawing all inferences in the government's favor, as required by Jackson, a rational juror could have inferred from these facts that the police had probable cause to believe that people were in the area such that Petitioner intended to or risked creating a public disturbance. Therefore, habeas relief is not warranted.
III. CONCLUSION
The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is hereby DENIED. However, upon Petitioner's application, this Court grants a certificate of appealability because there is a substantial issue as to the sufficiency of the trial evidence implicating Petitioner's due process rights. This Court will further continue the stay of incarceration pending the outcome of the appeal.
SO ORDERED: