Summary
affirming disorderly conduct conviction where officer responding to 911 call found defendant "acting irate, yelling and flailing his arms" in a CVS, and defendant, when approached by officer, "became aggressive . . . and raised his hands as if to fight" him
Summary of this case from Hughes v. LebronOpinion
No. 2013–2196 RO CR.
09-18-2015
The PEOPLE of the State of New York, Respondent, v. Robert RUBACKIN, Appellant.
Opinion
Appeal from a judgment of the Justice Court of the Town of Haverstraw, Rockland County (John K. Grant, J.), rendered October 23, 2013. The judgment convicted defendant, after a nonjury trial, of disorderly conduct.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in an information with disorderly conduct (Penal Law § 240.201 ). The factual portion of the accusatory instrument alleged that defendant intentionally and knowingly committed the violation of disorderly conduct under Penal Law § 240.20(1) in that, at 9:49 p.m. on October 14, 2011, a police officer had “responded to a911 call for a fight in progress at” a CVS pharmacy located in the Town of Haverstraw. When the officer “arrived on scene he observed the defendant acting irate, yelling and flailing his arms.” When the officer approached defendant, “he became aggressive towards” the officer “and raised his hands as if to fight” him. The officer “immediately handcuffed the defendant and placed him under arrest.”
Defendant moved to dismiss the accusatory instrument on the ground that it lacked factual allegations that defendant intended to cause a public inconvenience, annoyance or alarm, or recklessly created a risk thereof. The Justice Court denied the motion. After a nonjury trial, the Justice Court found defendant guilty as charged. The sole issue raised on appeal is that the accusatory instrument charging defendant with disorderly conduct was facially defective.
A misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” (People v. Kalin, 12 NY3d 225, 228–229 2009; see CPL 100.153; 100.401 ). This standard is known as “the prima facie case requirement” (People v. Kalin, 12 NY3d at 229 [internal quotation marks omitted] ). “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 2000 ). Giving the information “charging defendant with disorderly conduct such a reading, we find that it is jurisdictionally sufficient” (People v. Qureshi, 45 Misc.3d 57, 59 [App Term, 9th & 10th Jud Dists 2014] ).
Penal Law § 240.20(1) states that “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof” he “engages in fighting or in violent, tumultuous, or threatening behavior.” A critical aspect of the offense of disorderly conduct “is a finding that ... disruptive statements and behavior were of a public rather than an individual dimension” (People v. Baker, 20 NY3d 354, 359 2013 ). A “person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem' “ (People v. Weaver, 16 NY3d 123, 128 2011, quoting People v. Munafo, 50 N.Y.2d 326, 331 1980 ). The relevant factors for assessing whether “an act carries public ramifications ... 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” (Weaver, 16 NY3d at 128).
The factual part of the information in this case alleged that, at 9:49 p.m. on October 14, 2011, a police officer responded to a 911 call of a fight in progress at a CVS pharmacy. It is undisputed that the CVS pharmacy is a commercial establishment open to the public that was “open for business” (People v. Weaver, 16 NY3d at 128), and it can be inferred that CVS employees were on duty at that time. Thus, the incident had “carried ... to a point where” there was an “immediate public problem” (People v. Munafo, 50 N.Y.2d at 331). Therefore, giving the information a fair and not overly restrictive or technical reading, we find that it sufficiently alleged that defendant engaged in conduct that constituted a “public disturbance” (People v. Bakolas, 59 N.Y.2d 51, 54 1983 ). Moreover, it is well settled that intent may be inferred from a defendant's conduct and the totality of the circumstances (see People v. Bracey, 41 N.Y.2d 296, 303 1977; People v. Adilovic, 34 Misc.3d 159[A], 2012 N.Y. Slip Op 50437[U], *3 [App Term, 9th & 10th Jud Dists 2012] ). In the case at bar, the information sufficiently alleged that the circumstances were such that defendant's intent to create the risk of public disorder could “be readily inferred” (People v. Baker, 20 NY3d at 360).
Consequently, the Justice Court correctly denied defendant's motion to dismiss the accusatory instrument.
Accordingly, the judgment of conviction is affirmed.
TOLBERT, J.P., MARANO and CONNOLLY, JJ., concur.