Opinion
No. 2013–2478WCR.
09-18-2015
The PEOPLE of the State of New York, Respondent, v. Edward O'NEILL, Appellant.
Opinion
ORDERED that the judgment of conviction is affirmed.
On September 24, 2012, the People charged defendant, in an information, with disorderly conduct (Penal Law § 240.203 ), alleging that, on September 17, 2012, at about 3:10 p.m., at the Yonkers City Hall, defendant engaged in conduct that included loud and obscene verbal abuse directed at several of the employees, which had caused a crowd to gather. It was further alleged that defendant had continued using obscene language in a loud manner even after security personnel at the Yonkers City Hall had repeatedly asked him to stop.
At a nonjury trial, several of the employees of the Yonkers City Hall testified as to the particular obscenities employed, which defendant accompanied with threatening gestures, in the presence of several members of the public awaiting their turn at the window. Defendant's conduct attracted a small crowd of other members of the public at the doorway leading into the office. One of the employees testified that she became so “nervous” at defendant's conduct and at the inability of anyone in the office to calm defendant, that she sought the assistance of security personnel, who also observed defendant's behavior and at whom he directed profanities. After defendant ignored the numerous requests of the security personnel to calm down, defendant was placed under arrest. Defendant testified, in essence, that he did not commit the conduct alleged and, to the extent that the People's witnesses testified to the contrary, they were not truthful. The City Court found defendant guilty of disorderly conduct. On appeal, defendant argues that the proof was legally insufficient to support the conviction, and, in any event, that the conviction was against the weight of the evidence.
Defendant's claims of legal insufficiency are not preserved for appellate review (see CPL 470.052; People v. Hawkins, 11 NY3d 484, 492 2008; People v. Gray, 86 N.Y.2d 10, 19 1995; People v. Carlucci, 80 AD3d 621, 622 2011 [legal insufficiency claim that witness's testimony was incredible as a matter of law not preserved for appellate review]; People v. Crawford, 38 AD3d 680, 681 2007 [same]; People v. Clarke, 34 Misc.3d 159[A], 2012 N.Y. Slip Op 50438[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2012] [absent an objection at trial that the People had failed to prove that the defendant's conduct “was public in nature” no issue in relation thereto is preserved for appellate review]; see also People v. Kolupa, 13 NY3d 786, 787 2009; People v. Hines, 97 N.Y.2d 56, 61 2001; People v. Butler, 45 Misc.3d 134[A], 2014 N.Y. Slip Op 51726[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2014] [legal sufficiency claim unpreserved where the defendant failed to move to dismiss after presenting a case which included “evidence relevant to (a) defense”]; cf. People v. Finch, 23 NY3d 408, 416 2014 ). In any event, we find that the People's proof was legally sufficient.
In the exercise of our authority to determine whether a judgment of conviction is supported by the weight of the evidence (CPL 470.155; People v. Danielson, 9 NY3d 342 2007 ), we must first “determin[e] ... whether it would have been reasonable for the factfinder to have reached a different verdict, and if so, whether, after a weighing of the probative value of conflicting testimony and the relative strength of conflicting inferences drawn therefrom, the trier of fact accorded the proper weight to the evidence (see People v. Romero, 7 NY3d 633, 643–644 2006; see also People v. Mateo, 2 NY3d 383, 409–410 2004; People v.. Bleakley, 69 N.Y.2d 490, 495 1987 )” (People v. Williams, 38 Misc.3d 4, 8 [App Term, 2d, 11th & 13th Jud Dists 2012] ). “In this review, an appellate court must accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility” (id.; see People v. Lane, 7 NY3d 888, 890 2006 ).
Assuming, without deciding, that another outcome would have been reasonable, we find that the conviction is not against the weight of the evidence. As defendant argues, “evidence of actual or threatened public harm ... is a necessary element of a valid disorderly conduct charge” (People v. Johnson, 22 NY3d 1162, 1164 2014; see also People v. Baker, 20 NY3d 354, 360 2013; People v. Weaver, 16 NY3d 123, 127 2011; People v. Munafo, 50 N.Y.2d 326, 331 1980 ), and a conviction normally requires proof that “the situation extend[ed] beyond the exchange between the individual disputants” (Weaver, 16 NY3d at 128). However, “there is no per se requirement that members of the public ... be involved or react to the incident;” it is sufficient that the proof established that the defendant's conduct recklessly created a risk of public inconvenience, annoyance or alarm (id.). “In assessing whether an act carrie[d] public ramifications, relevant factors to be considered are the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted; and any other relevant circumstances” (People v. Snyder, 36 Misc.3d 137[A], 2012 N.Y. Slip Op 51434[U], *1 [App Term, 9th & 10th Jud Dists 2012], citing Weaver, 16 NY3d at 128] ).
Here, the credible proof established that defendant's loud, profane cursing and violent gesticulations, directed at a City Hall employee, occurred in the presence of other employees, and several members of the public “seated only a few feet away” in the waiting room. Other employees and security personnel testified that they could hear defendant's profanities 20 feet from the hallway door leading into the waiting room; that, by the time they reached the door, four or five persons, attracted by the sounds of the altercation, had gathered nearby; and that defendant had continued his profane tirade even after being confronted by the arresting officer, asked to refrain from the conduct, and escorted from the office. While conduct that merely attracts the attention of curious bystanders may not establish the requisite public disorder or the risk thereof (Baker, 20 N.Y.2d at 362; People v. Pritchard, 27 N.Y.2d 246, 248–249 1970 ), disruptive conduct involving loud profane language and tumultuous physical behavior in a public building, where members of the public are actually or reasonably anticipated to be present, is deemed almost inherently to pose a risk of public inconvenience, annoyance, or alarm, given the confined spaces, the number of persons typically present, and the likelihood that disorderly conduct would be observed by others even without proof “that members of the public ... [were] involved or react[ed] to the incident” (Weaver, 16 NY3d at 128; see e.g. Matter of Banks v. Opoku, 109 AD3d 470 2013; Norasteh v. State of New York, 44 AD3d 576, 576 2007; People v. Smith, 43 Misc.3d 71, 72–73 [App Term, 9th & 10th Jud Dists 2014]; People v. Clarke, 34 Misc.3d 159[A], 2012 N.Y. Slip Op 50438[U], *1).
Defendant further claims that the verdict was against the weight of the evidence in that the proof was insufficient to establish his intent to commit the offense. “[Although] the risk of public disorder does not have to be realized ... the circumstances must be such that defendant's intent to create such a threat (or reckless disregard thereof) can be readily inferred” (Baker, 20 NY3d at 360, citing Weaver, 16 NY3d at 128, and People v. Todaro, 26 N.Y.2d 325, 329 1970 ). “A person acts intentionally with respect to a result ... when his [or her] conscious objective is to cause such result or to engage in such conduct” (Penal Law § 15.051 ), and it is commonplace that, absent direct evidence such as a confession, intent “may be inferred from conduct as well as the surrounding circumstances” (People v. Ford, 120 AD3d 509, 509 2014, citing People v. Steinberg, 79 N.Y.2d 673, 682 1992; see also People v. Barnes, 50 N.Y.2d 375, 381 1980; People v. Bracey, 41 N.Y.2d 296, 301 1977 ). Here, the credible proof established that defendant repeatedly addressed loud profane insults and gesticulated emphatically at city employees knowing that other employees and members of the public were in the enclosed area where his conduct occurred. His awareness of the risk of public inconvenience, annoyance or alarm may readily be inferred.
Accordingly, the judgment of conviction is affirmed.
TOLBERT, J.P., GARGUILO and CONNOLLY, JJ., concur.