Opinion
2010NY011779.
Decided July 6, 2010.
The Defendant was represented by BRUCE FRIEDMAN, Esq. of the Legal Aid Society of the City of New York, 49 Thomas Street, New York, NY.
The People were represented by Assistant District Attorney DANIEL BRODY, Office of the New York County District Attorney, Cyrus Vance, District Attorney.
The defendant Quashawn Yarborough has been charged with Disorderly Conduct arising from allegations that he refused to comply with a police order to disperse. The defendant moves to dismiss the count of PL § 240.20 (6) from the underlying accusatory instrument on grounds of facial insufficiency pursuant to CPL §§ 170.30(a) and 170.35. At issue is whether a prima facie case of Disorderly Conduct predicated upon subsection (6) of the statute [refusal to comply with a lawful police order to disperse], requires the accusatory instrument to include allegations which describe the manner in which the defendant's non-compliance created a scenario or risk of public inconvenience, annoyance, or alarm. This Court holds that in the absence of allegations which demonstrate a nexus between the defendant's conduct and its impact upon the public peace and order, the act of disobeying a police command is reduced to a private dispute between the accused and law enforcement officials. Conduct of such a private nature falls outside the purview of behavior proscribed by the Disorderly Conduct statute, and will not support a prima facie violation of this statute. In this case, we conclude that the underlying information fails to establish the public dimension or ramifications of the defendant's actions and accordingly, we grant the defendant's motion to dismiss. Our reasoning is as follows.
The defendant was arrested on February 12, 2010 in connection with an incident during which he allegedly refused to obey a police order to disperse while the police were attempting to issue a summons to a third party. The defendant was arraigned later that day, at which time the People filed a misdemeanor complaint charging the defendant with violations of New York Administrative Code § 10.134 (1)(e) [Possession of a Box Cutter] and Disorderly Conduct [PL § 240.20(6)]. In sum and substance, the complaint alleges that the defendant, along with five other unnamed individuals, crowded around a police officer as he was attempting to issue a summons to a third party on a public street. The complaint further alleges that the defendant refused to disperse after the police officer repeatedly ordered him to do so. In addition, it is alleged that the defendant directed profane language at the officer.
The defendant has not challenged the sufficiency of the charge of AC § 10.134 (1) (e) [Possession of a Box Cutter ].
The defendant moves for dismissal on grounds of facial insufficiency, contending that the accusatory instrument fails to establish the elements of the offense by non-hearsay allegations as required by CPL 100.15 and 100.40. The defendant has cited People v. Jones , 9 NY3d 259 , in support of his motion. The defendant in Jones, supra, was charged with PL § 240.20(5) [obstruction of pedestrian or vehicular traffic] after he refused to obey a police officer's direction to move. The Court Appeals held that the information failed establish a prima facie case of disorderly conduct under PL § 240.20(5) because "nothing in the information indicates how defendant had the intent to recklessly create a risk of causing public inconvenience, annoyance or alarm". People v. Jones, 9 NY3d 259, at 262. The defendant argues that this reasoning concomitantly applies to PL § 240.20 (6) [ He congregates with other persons in a public place and refuses to comply with a lawful order to disperse].
In order to be sufficient on its face, an information must contain factual allegations that would, if true, make out a prima facie, or legally sufficient case (see People v. Alejandro, 70 NY2d 133. CPL § 70.10 sets forth that "legally sufficient evidence" means competent evidence which, if accepted as true establish every element of an offense charged and the defendant's commission thereof. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged. "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight or persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. (See CPL 70.20(2); People v. Dumas, 68 NY2d 729 (1986). When these requirements are met, this is also referred to as a prima facie case.; see People v. Alejandro, 70 NY2d 133 (1987). However, a prima facie case is not to be confused with proof beyond a reasonable doubt, as required at trial. People v. Kalin , 12 NY3d 225 (2009); People v. Henderson, 92 NY2d 677 (1999). "So long as the factual allegations of an information give an accused notice 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 NY2d 354 (2000).
PL § 240.20 (6) sets forth 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 congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse. In order to establish a prima facie case of PL § 240.20(6) the accusatory instrument must establish the following elements: (1) that a defendant congregated with other persons, (2) that he refused to comply with a lawful order of the police to disperse, (3) that the conduct occurred in a public place and (4) that the defendant did so with intent to cause public inconvenience, alarm or annoyance or that he recklessly created a risk thereof. People v. Cohen, 6 Misc 3d 1019(A) (N.Y.City Crim. Ct., 2005)
In People v. Carcel, 3 NY2d 327, the Court of Appeals defined the term "congregating" as a coming together of persons or a crowd; the term congregates with others" as used in the Disorderly conduct statute, requires at the very least three persons at a given place and time. (See too People v. Cohen, 6 Misc 3d 1019(A) (Crim ct., New York Co, 2005)
"The disorderly conduct statute was designed to proscribe only that type of conduct which has a real tendency to provoke public disorder. The Court of Appeals has emphasized that the disruptive behavior proscribed by our disorderly conduct statute be of public rather than individual dimension, (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, PL 240.20) citing People v. Munafo, 50 NY2d 326 (1980) "The clear aim [of the enactment of the Disorderly Conduct statute] was to reserve the disorderly conduct statute for situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem". In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny." People v. Mufaro, 50 NY2d 326, at 331. See too People v. Richards , 22 Misc 3d 798 (NY City Crim. Ct., 2008) .In this case, the accusatory instrument is devoid of any allegations tending to show the impact of the defendant's actions upon the public peace and order. Rather, the conduct described in the underlying complaint, depicts a dispute between the defendant and the officer who issued the order to disperse. The complaint does not allege the presence of any members of the public. Even assuming arguendo that "the public" included the five other un-named individuals who allegedly congregated with the defendant, the complaint fails to set forth how the defendant's conduct caused them to be alarmed, inconvenienced or put at risk. (See People v. M.R , 12 Misc 3d 671 , which held that an information alleging that defendant and a group of other young men were jumping up and down, jostling each other, and making noise in a public park was facially in sufficient to charge defendant with disorderly conduct, absent allegations that anyone was present in the park other than defendant, his companions and the arresting officer.) Moreover, the allegations in the complaint fail to show if, or in what manner, the defendant's conduct impacted the attempted arrest of the third party. Additionally, the sufficiency of the Disorderly Conduct charge cannot be established under a Casey ( People v. Casey, 95 NY2d 354) analysis since the defendant's intent to cause or recklessly create a public problem cannot be inferred from the allegations in the complaint. (see too People v. Hanneman, 19 Misc 3d 73 (App. Term 1st dept., 2008); People v. Letang, 14 Misc 3d 139[A], lv. denied 8 NY3d 987).
The complaint sets forth that the defendant directed obscene language at the police officer who issued the order to disperse. An individual's mere use of obscene or abusive language does not elevate his conduct to the level contemplated by the disorderly conduct statute. People v. Tichenor, 89 NY2d 769 (1997). The complaint does not allege that the defendant's obscene language was intended to alarm the public or create a public disturbance. It is not alleged that the defendant's abusive language was accompanied by threats or physical violence.
This Court concludes that the information fails to support a charge of Disorderly Conduct and accordingly, grants the defendant's motion to dismiss this count from the accusatory instrument. As previously noted, the defendant has also been charged with AC § 10.134 (1)(e) [Possession of a Box Cutter], but has not challenge the sufficiency of that charge. As such, that count of the accusatory instrument remains viable.
In summary, the factual allegations in the complaint fail to demonstrate that the defendant's conduct was intended to cause public inconvenience, annoyance or alarm or to create a risk of creating disruption to the public peace and order. Rather, the complaint simply describes an incident in which the defendant refused to comply with a police order. The public dimension of the defendant's conduct is an essential element of the offense of Disorderly Conduct. People v. Jones , 9 NY3d 259 . Moreover, bare assertions that the defendant's conduct caused or created a risk of public inconvenience, annoyance or alarm will not suffice in the absence of a description of the nexus between the conduct and the public peace and order. Since the complaint fails to establish the public ramifications to the defendant's conduct, the purported information fails to establish a prima facie case of Disorderly Conduct. Accordingly, the defendant's motion to dismiss the count of PL § 240.20(6) is granted.
This shall constitute the final decision and order of this Court.