Opinion
January 25, 1971
Appeal from the Criminal Court of the City of New York, County of New York, JEROME KIDDER, J.
Henesy, Kerwick Hodges ( Barry Manson of counsel), for appellant.
Frank S. Hogan, District Attorney ( Lewis R. Friedman and David Otis Fuller, Jr., of counsel), for respondent.
The District Attorney candidly concedes on this appeal that the conviction for disorderly conduct should be reversed because it may not be considered included in the violation of harassment, with which defendant was charged. Disorderly conduct requires proof of an element — "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" (Penal Law, § 240.20) — which is not required to establish harassment — "intent to harass, annoy or alarm another person" (Penal Law, § 240.25). Since such additional element or fact must be shown in a case of disorderly conduct, it may not be considered a lesser included offense of harassment. The record supports the finding of guilt on the charge of obstructing traffic.
The judgment of conviction of obstructing traffic should be affirmed. The judgment of conviction of disorderly conduct should be reversed on the law, complaint as to the charge of harassment dismissed, and fine in the amount of $25 remitted.
Concur — LUPIANO, J.P., STREIT and GOLD, JJ.
Judgment of conviction of obstructing traffic affirmed.
Judgment of conviction of disorderly conduct reversed, etc.