Opinion
11-30-2015
The PEOPLE of the State of New York, Respondent, v. Byron HOLLAND, Defendant–Appellant.
Judgment of conviction (Eileen Koretz, J.H.O.), rendered May 25, 2010, reversed, on the law, and accusatory instrument dismissed.
Defendant was charged in a misdemeanor information with resisting arrest, criminal trespass in the third degree, trespass and disorderly conduct. The factual portion of the information alleges that defendant was observed inside a "clean halls" apartment building that was marked with "no trespassing" signs; when questioned by police, defendant responded "my family lives in the building ... I don't know what apartment"; and that while police were attempting to arrest defendant for these actions, defendant "flailed his arms, twisted his body, and kicked his legs in an attempt to prevent handcuffing." The resisting arrest, criminal trespass in the third degree and trespass charges were dismissed and, after a subsequent nonjury trial, defendant was convicted of disorderly conduct.
We agree with defendant that the information charging him with disorderly conduct is jurisdictionally defective because it fails to provide factual allegations that his conduct was intended to or recklessly created a substantial risk of "a potential or immediate public problem" (People v. Munafo, 50 N.Y.2d 326, 331 [1980] ). Absent any allegation that there were any bystanders or spectators who witnessed the incident prior to the arrest, the allegations failed to describe a "situation[ ] that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem" (id.; see People v. Jackson, 18 Misc.3d 134[A], 2008 N.Y. Slip Op 50169[U] [App Term, 1st Dept 2008], lv denied 10 NY3d 841 [2008] ; People v. Moreno, 47 Misc.3d 138[A], 2015 N.Y. Slip Op 50587[U] [App Term, 2d, 11th and 13th Jud Dists 2015, lv denied 25 NY3d 1168 [2015] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.