Opinion
No. 2015NY039688.
08-27-2015
The PEOPLE of the State of New York v. Kevin FERGUSON, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney by A.D.A. Hannah Yu, for the People. The Legal Aid Society by Jenny Hurwitz, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney by A.D.A. Hannah Yu, for the People.
The Legal Aid Society by Jenny Hurwitz, Esq., for the Defendant.
STEVEN M. STATSINGER, J.
Defendant, charged with disorderly conduct and resisting arrest, moves to dismiss the information as facially insufficient. For the reasons that follow, the motion to dismiss is GRANTED. Sealing is stayed for 30 days.
I. FACTUAL BACKGROUND
A. The Allegations
According to the information, on the evening of June 20, 2015, a police officer saw the defendant yelling at another person on a street in upper Manhattan. Five people stopped and stared. When the officer attempted to arrest the defendant for this, he resisted.
B. Legal Proceedings
Defendant was arraigned on June 21, 2015, on an information charging him with disorderly conduct, Penal Law § 240.20(1), and resisting arrest, Penal Law § 205.30. The Court released the defendant and set a motion schedule. Defendant filed the instant motion on July 23, and the matter has been sub judice since then.
II. THE INFORMATION
The information, sworn to by Police Officer Wonjin Noah, provides that, at 9:20 p.m. on June 20, 2015:
I observed the defendant yelling at another individual [in front of 117 West 142 Street, in New York County], causing approximately five people to stop and stare at the defendant.
When I attempted to place the defendant under arrest for the conduct described above, he stiffened his arms, refused to put his hands behind his back, pushed Police Officer Sean Doheny ... into a metal rail, and flailed his arms, making it difficult to place him in handcuffs.
III. DISCUSSION
The facts pled in the information are insufficient to make out a prima facie case as to either the "public alarm" or the "tumultuous conduct" element of disorderly conduct. Both the disorderly conduct count and the corresponding count charging defendant with resisting arrest must accordingly be dismissed.
A. Facial Sufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 N.Y.3d 518, 992 N.Y.S.2d 672 (2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S.2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." Kalin, 12 N.Y.3d at 228–29, 906 N.E.2d at 383, 878 N.Y.S.2d at 655 (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as "the prima facie case requirement." Kalin, 12N.Y .3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement does not necessitate that an information allege facts that would prove a defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 N.Y.3d 738, 747, 944 N.Y.S.2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d at 91, 740 N.E.2d at 236.
Under these standards, the information here is facially insufficient.
B. Penal Law § 240.20(1)
A person is guilty of disorderly conduct under Penal Law § 240.20(1) when he, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] ... engages in fighting or in violent, tumultuous or threatening behavior." Simply "yelling" at another person while on a public street, even in front of bystanders, does not make out this offense.
1. Insufficiency as to "Public Harm"
The disorderly conduct statute contains a number of subsections, but all, including the subsection charged here, have as a unifying factor the essential element of intending to cause, or recklessly creating the risk of causing, "public inconvenience, annoyance or alarm." This language reflects the Legislature's intent to "deter breaches of the peace or, more specifically, of the community's safety, health or morals." People v. Munafo, 50 N.Y.2d 326, 331, 428 N.Y.S.2d 924, 406 N.E.2d 780 (1980).
In Munafo, the Court of Appeals noted that the disorderly conduct statute was meant to address "situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem." Id. In other words, a private conflict between two people does not constitute disorderly conduct under § 240.20 unless there has been a of breach of the peace. Id. at 332, 428 N.Y.S.2d 924, 406 N.E.2d 780. To determine whether there has been public inconvenience, annoyance or alarm, courts will consider such factors as the number of those attracted to the scene, the surrounding circumstances of the dispute, and the time and place of the incident. Id. at 331–32, 428 N.Y.S.2d 924, 406 N.E.2d 780. "Critical to a charge of disorderly conduct is a finding that defendant's disruptive statements and behavior were of a public rather than an individual dimension." People v. Baker, 20 N.Y.3d 354, 359, 960 N.Y.S.2d 704, 984 N.E.2d 902 (2013).
In Baker, the defendant yelled obscenities at a police officer on a public street, at which point, two officers placed him under arrest. Id. In concluding that the arrest for disorderly conduct was not based on probable cause, the Court of Appeals held that there was "no record basis" for finding the "public harm element." Id. at 362, 960 N.Y.S.2d 704, 984 N.E.2d 902. There are other offenses in the Penal Law, such as menacing and harassment, that are intended to cover altercations of a personal nature. Id. at 360, 960 N.Y.S.2d 704, 984 N.E.2d 902. But the "public harm" element of the disorderly conduct statute "performs an important narrowing function" that serves to distinguish it from those other offenses. Id.
Here, the information is devoid of factual allegations that would establish the public harm element. While it alleges that the conduct took place on a public street, and that approximately five individuals "stop[ped] and stare [ ]d," that does not save it. Those facts were true in Baker as well-even though a "group of bystanders gathered" to watch the defendant's encounter with the police, id. at 357, 960 N.Y.S.2d 704, 984 N.E.2d 902, the evidence was still insufficient.
Munafo is another Court of Appeals case that supports dismissal. There, the defendant behaved violently, in a public, albeit rural, place to protest actions of the State Power Authority, which had appropriated some of the defendant's land for a project. 50 N.Y.2d at 329, 428 N.Y.S.2d 924, 406 N.E.2d 780. Even though there were bystanders, disorderly conduct was not made out. "[T]hose present were small in number," and the defendant did not try to incite them or encourage them to assist him. Id. at 332, 428 N.Y.S.2d 924, 406 N.E.2d 780. "[T]he differences between the authority and the defendant were confined to these two disputants rather than spread to the public." Id.
The same is true here. Whatever defendant was "yelling" about was a private matter between him and the other person. He did not seek to spread the discussion to the public, and did not in fact do so. The public harm element is accordingly not made out even though it is true that, as in both Baker and Munafo, a small number of bystanders was present. All they did was what bystanders would be expected to do: they stood by. See also People v. Castro, 29 Misc.3d 1217(A), 918 N.Y.S.2d 399 (Sup Ct Bronx County 2010) (public harm element not made out where defendant yelled at police officers in front of passers by, some of whom stopped); People v. Palmer, 176 Misc.2d 813, 674 N.Y.S.2d 566 (Crim Ct N.Y. County 1998) (disorderly conduct count dismissed where defendant yelled obscenities at police officer, in full view of passers by).
Accordingly, the information is insufficient as to the "public harm" element.
2. Insufficiency as to "Tumultuous" Behavior
The information is also insufficient because the conduct alleged, defendant's "yelling" at another person, does not make out a prima facie case of "violent, tumultuous or threatening behavior." This conduct was obviously not violent and, absent any allegation as to what defendant actually said, was not threatening, either.
Nor was it "tumultuous," since that term implies something more extreme than mere yelling. The ordinary meaning of the term "tumultuous" is "loud, excited, and emotional ... involving a lot of violence, confusion, or disorder." Case after case has concluded that merely "yelling" is not enough. See, e.g., People v. Moreno, 47 Misc.3d 138(A) (App.Term 2d, 11th and 13th Dists 2015) (yelling and cursing at police officers, a "crude and offensive outburst," was not "tumultuous"); People v. Square, 20 Misc.3d 1126(A), 872 N.Y.S.2d 693 (Crim Ct N.Y. County 2008) (yelling, by itself, is not "tumultuous"); People v. Cameron, 3 Misc.3d 1105(A), 787 N.Y.S.2d 679 (Crim Ct Kings County 2004) ("Although the court does not condone yelling and cursing at the police, such behavior cannot possibly be characterized as engaging in fighting, violent, tumultuous or threatening behavior that is of immediate public concern."); People v. Palmer, 176 Misc.2d 813, 674 N.Y.S.2d 566 (Crim Ct N.Y. County 1998) (shouting obscenities at police officer in full view of passers by); People v. Stephen, 153 Misc.2d 382, 581 N.Y.S.2d 981 (Crim Ct N.Y. County 1992) (no "tumultuous" conduct where defendant grabbed his genitals and yelled offensive epithets at a police officer).
http://www.merriam-webster.com/dictionary/tumultuous (last accessed August 12, 2015).
--------
3. Conclusion
The disorderly conduct count is facially insufficient, and the motion to dismiss that count is granted.
C. The Resisting Arrest Count Must also Be Dismissed
Because the People must establish that an arrest was "authorized" as a predicate to a resisting arrest charge, the count charging the defendant with that offense must also be dismissed. The facts alleged to not make out a prima facie case of disorderly conduct, and therefore defendant's arrest was not authorized. See People v. Dennis, 13 Misc.3d 41, 823 N.Y.S.2d 830 (App Term 9th and 10th Dists 2006) ; Moreno, 47 Misc.2d at 138, 261 N.Y.S.2d 803 (A) ( "As there were insufficient allegations in the accusatory instrument to establish reasonable cause to believe that defendant committed ... disorderly conduct ..., the misdemeanor complaint failed to set forth facts establishing reasonable cause to believe that defendant's arrest was authorized, a necessary element of the offense of resisting arrest.")
V. CONCLUSION
For the foregoing reasons, defendant's motion to dismiss is granted. Sealing is stayed for 30 days.
This constitutes the Decision and Order of the Court.