PEOPLE v. JONES (2006)

Judgment of conviction (Abraham Clott, J.), rendered June 13, 2004, affirmed.

 The information charging defendant with disorderly conduct stated that on June 12, 2004, at approximately 2:00 A.M., defendant, “along with a number of other individuals,” was observed at West 42nd Street and Seventh Avenue in Manhattan, “standing around” on the sidewalk, “not moving”;  that in result “numerous pedestrians in the area had to walk around defendant”;  and that defendant fled after initially refusing to move when requested to do so by police.   These allegations, “given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ), were sufficient for pleading purposes to make out a prima facie case of disorderly conduct (Penal Law § 240.20[5];  see People v. Dorton, 11 Misc.3d 144(A), 2006 N.Y. Slip Op. 50808[U], 2006 WL 1209390 [App. Term, 1st Dept.] lv. denied 7 N.Y.3d 788, 821 N.Y.S.2d 817, 854 N.E.2d 1281 [2006];  see also People v. Todaro, 26 N.Y.2d 325, 328-329, 310 N.Y.S.2d 303, 258 N.E.2d 711 [1970];  Matter of James T., 189 A.D.2d 580, 592 N.Y.S.2d 36 [1993] ).   Even if the factual allegations set forth in the information are fairly described as “bare boned,” they were legally sufficient to support the disorderly conduct charge (see generally People v. Allen, 92 N.Y.2d 378, 385, 681 N.Y.S.2d 216, 703 N.E.2d 1229 [1998];  cf. People v. Ocasio, 2002 N.Y. Slip Op. 50071[U], 2002 WL 338270 [App. Term, 1st Dept.] [information lacked any evidentiary facts, merely tracking the general language of Penal Law § 240.20 in stating that defendant was “disorderly”] ).

 Contrary to defendant's contention, the accusatory instrument is not jurisdictionally infirm due to the absence of specific allegations concerning the precise number of pedestrians affected by his conduct or the degree of inconvenience or annoyance experienced by such pedestrians, matters which were best left for the trial that defendant eschewed through his guilty plea.

I respectfully dissent.

The issue is the facial sufficiency of the information charging the defendant with disorderly conduct under Penal Law Sec. 240.20(5) ¹ . The section reads:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

5.  He obstructs vehicular or pedestrian traffic ․

The evidentiary portion of the information reads:

Deponent states that he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' behavior, numerous pedestrians in the area had to walk around defendants.

Deponent states that deponent directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run.

Deponent states that while a police officer was attempting to arrest defendant for the above described offense, defendant resisted in that defendant flailed his arms and refused to place his hands behind his back.

The factual allegations of the accusatory instrument “must meet two conditions:  (1) that the allegations provide reasonable cause to believe that the defendant committed the offense (subd. [b] ) and (2) that nonhearsay allegations establish, if true, every element of the offense charged (subd. [c] )” (People v. Alejandro, 70 N.Y.2d 133, 137, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ).

Comparing these requirements with the information highlights its deficiencies.   The information lacks sufficient evidence to state a prima facie case or reasonable cause to convict defendant of Penal Law Sec. 240.20(5) (People v. Dorton, 11 Misc.3d 144(A), 2006 N.Y. Slip Op. 50808[U], 2006 WL 1209390 [App. Term, 1st Dept.], lv. denied 7 N.Y.3d 788, 821 N.Y.S.2d 817, 854 N.E.2d 1281 [2006]).   Standing to talk with a few other people on the public sidewalk, even if it requires other pedestrians to walk around him, is commonplace in New York and not disorderly conduct.   Mere inconvenience to pedestrians is insufficient.   There must be a claim of “serious annoyance” or a “threatening or abusive” manner to pedestrians (People v. Carcel, 3 N.Y.2d 327, 332, 165 N.Y.S.2d 113, 144 N.E.2d 81 [1957];  see also People v. Nixon, 248 N.Y. 182, 161 N.E. 463 [1928];  People v. Pearl, 66 Misc.2d 502, 321 N.Y.S.2d 986 [App. Term, 1st Dept. 1971] ).   The information fails to demonstrate public inconvenience, annoyance, alarm or intent to cause such a result (People v. Munafo, 50 N.Y.2d 326, 331, 428 N.Y.S.2d 924, 406 N.E.2d 780 [1980] ).

The cases cited by the Majority are distinguishable and generally refer to Penal Law Sec. 240.20(6) ² , which was never changed in the information, where the defendant failed to “disperse” after being given a lawful order by a police officer.  People v. Todaro, 26 N.Y.2d 325, 310 N.Y.S.2d 303, 258 N.E.2d 711 [1970] affirmed a conviction of disorderly conduct under Penal Law Sec. 240.20(6) after trial where the defendant failed to move after being requested three times by the police officer within an hour, cursed and threatened the officer.   The principal issue in Todaro was not sufficiency of the information but reasonable doubt as to causing public inconvenience, annoyance or alarm.  People v. Dorton, 11 Misc.3d 144(A), 2006 N.Y. Slip Op. 50808[U], 2006 WL 1209390 [App. Term, 1st Dept.] was another challenge to the facial sufficiency of the accusatory instrument charging disorderly conduct under Penal Law Sec. 240.20(5),(6) where the defendant refused to move but sat on the sidewalk from which public inconvenience could be inferred.  Matter of James T., 189 A.D.2d 580, 592 N.Y.S.2d 36 [1st Dept. 1993] was not a challenge to facial sufficiency but to a fact-finding determination where the juvenile refused to move when requested by the police officer, cursed and hit the officer, and then ran.

The Judgment of conviction should be reversed and the information dismissed.

This constitutes the decision and order of the court.

FOOTNOTES

1.   The information charged disorderly conduct under Penal Law Sec. 240.20(5) and resisting arrest under Penal Law Sec. 205.30.   The plea to the disorderly conduct charge Penal Law Sec. 240.20(5) covered both counts.

2.   Penal Law Sec. 240.20(6):  A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:  6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse ․

PER CURIAM.

I concur.