Opinion
15-093
12-14-2016
The People of the State of New York, Respondent, v. Joel McDonald, Defendant-Appellant.
PRESENT: Lowe, III, P.J., Shulman, Gonzalez, JJ.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (John Cataldo, J.H.O.), rendered September 18, 2014, after a nonjury trial, convicting him of disorderly conduct, and imposing sentence.
Per Curiam.
Judgment of conviction (John Cataldo, J.H.O.), rendered September 18, 2014, reversed, on the law, the accusatory instrument dismissed and fine, if paid, remitted.
We agree with defendant that the accusatory instrument charging him with disorderly conduct under Penal Law § 240.20(1) is jurisdictionally defective. Allegations that defendant was "screaming at others . . . You [expletive deleted] better buy my CD and stop asking for directions,'" did not constitute "violent, tumultuous or threatening behavior" (see Penal Law § 240.20[1]; see also William C. Donnino, Practice Commentaries, McKinneys Cons Laws of NY, Book 39, Penal Law § 240.05 at 13 ["The phrase tumultuous and violent conduct' means much more than mere loud noise or ordinary disturbance. It is designed to connote frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts'"). Nor did the statement constitute a direct and credible threat that defendant would harm anyone (see People v Moreno, 47 Misc 3d 138[A], 2015 NY Slip Op 50587[U] [App Term, 2nd, 11th and 13th Dists [2015]), lv denied 25 NY3d 1168 [2015]; People v. Ferguson, 48 Misc 3d 1226[A], 2015 NY Slip Op 51274[U] [Crim. Ct., NY County 2015).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: December 14, 2016