PEOPLE v. REED (2008)

The Complaint before us accuses Defendant of Disorderly Conduct (PL § 240.20(1)), and Resisting Arrest (PL § 205.30), for allegedly standing on a subway platform and blocking pedestrian traffic.   Defendant seeks dismissal of the accusatory instrument for facial insufficiency pursuant to CPL §§ 170.30(1)(a), 170.35(1)(a)-(b), 100.15, and 100.40.   In the alternative, Defendant moves to reserve his right to make further motions pursuant to CPL § 255.20(3).

We find, particularly in light of the Court of Appeals' decision, last November, in People v. Jones, 9 N.Y.3d 259, 848 N.Y.S.2d 600, 878 N.E.2d 1016 (2007), that the Complaint before us is insufficient.   Defendant's motion is granted, and the Complaint dismissed.

The Complaint is Facially Insufficient

In order to be sufficient on its face, an accusatory instrument must allege facts sufficient to provide reasonable cause to believe that the Defendant committed the offenses charged.  CPL § 100.40(4)(b);  People v. Dumas, 68 N.Y.2d 729, 497 N.E.2d 686, 506 N.Y.S.2d 319 (1986).

The Complaint herein states in relevant part:

Deponent [is] informed by Police Officer Kevin Belavsky ․ that, at the above time and place, Informant observed Defendant blocking the flow of pedestrian traffic on the subway platform by standing in the middle and blocking the free flow of pedestrian traffic at the above mentioned location.

A. The Complaint Insufficiently Alleges Disorderly Conduct (PL § 240.20(1)).

 In order to sustain a charge of Disorderly Conduct under PL § 240.20(1), a Complaint must allege that “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof;  1. [Defendant] engages in fighting or in violent, tumultuous or threatening behavior.”

Defendant's argument is twofold.   First, he argues that the Complaint fails to allege tumultuous behavior or fighting, and that the People should instead have charged him with violating PL § 240.20(5), which prohibits the obstruction of pedestrian traffic.   Second, Defendant argues, pursuant to People v. Jones, supra, that merely standing on a subway platform is insufficient to arise to Disorderly Conduct.   The People counter that by blocking pedestrian traffic on a subway platform, Defendant created a public risk that passers-by might fall into the tracks.

While blocking or shoving pedestrians on a narrow platform might well create a public risk, the statute under which Defendant is charged requires fighting, threats or tumult.   PL § 240.20(1).   The Complaint before us, rather than alleging tumult, faults Defendant for standing still.   Even assuming, arguendo, that Defendant intended to create public alarm, the People have failed to allege a necessary element of the crime, rendering the Complaint jurisdictionally deficient.  People v. Alejandro, 70 N.Y.2d 133, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1987);  People v. Dumas, supra.

 Moreover, as the Court of Appeals recently reiterated in People v. Jones, supra, standing still and inconveniencing a pedestrian does not amount to Disorderly Conduct.¹  “Something more than a mere inconvenience of pedestrians is required to support the charge ․ Otherwise, any person who happens to stop on a sidewalk-whether to greet another, to seek directions or simply to regain one's bearings-would be subject to prosecution” for Disorderly Conduct.  People v. Jones, 9 N.Y.3d 259, 262-63, 848 N.Y.S.2d 600, 878 N.E.2d 1016.   See also Staff Notes of the Commission on Revision of the Penal Law. McKinney's Spec. Pamph. (1964), p. 388 (the Disorderly Conduct statute is “designed to proscribe only that type of conduct which has a real tendency to provoke public disorder.”).   Like the Complaint dismissed in People v. Jones, supra, the Complaint herein is silent as to whether Defendant was actively blocking commuters, preventing others from boarding a train, or merely consulting a subway map, and therefore fails to allege the necessary intent required by the statute.

The People attempt to distinguish this case from Jones on the grounds that a sidewalk is different from a subway platform (People's Aff. 3).   We agree with the distinction, but take judicial notice that unlike a sidewalk, which is designed for walking, the expected behavior of individuals on a subway platform is to stand in one place, usually that near the particular car that is closest to the desired exit at the station where they intend to disembark, until the arrival of the next train.   The People's assertions, citing People v. Munafo, 50 N.Y.2d 326, 406 N.E.2d 780, 428 N.Y.S.2d 924 (1980), that Defendant was standing near potentially hazardous train tracks, ignored a Police Officer's request to move or created the risk that someone could fall from the platform (People's Aff. 1), are absent from the Complaint, and there is therefore nothing to distinguish Defendant's conduct from that of the other commuters waiting for the subway.

We therefore find that the Complaint alleges neither the disruptive intent nor the tumultuous conduct necessary to sustain a charge of PL § 240.20(1).   Defendant's motion to dismiss this count is accordingly granted.

B. The Complaint Insufficiently Alleges Resisting Arrest Under PL § 205.30.

 The People argue in the alternative, citing People v. Williams, 25 N.Y.2d 86, 250 N.E.2d 201, 302 N.Y.S.2d 780 (1969) and People v. Vogel, 116 Misc.2d 332, 457 N.Y.S.2d 666 (2d Dept.1982) that even if the Complaint insufficiently alleges Disorderly Conduct, the count of Resisting Arrest has been properly pled.   They argue that the lawfulness of Defendant's arrest, which Defendant contests, is an issue that should be reserved for trial.   We disagree.

Resisting Arrest, PL § 205.30, criminalizes the act of “intentionally prevent [ing] or attempt[ing] to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.”   A necessary element under this statute is therefore the requirement that the arrest be made in accordance with the law, thus premised on probable cause.  People v. Jensen, 86 N.Y.2d 248, 654 N.E.2d 1237, 630 N.Y.S.2d 989 (1995);  People v. Alejandro, 70 N.Y.2d 133, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1987).

The People's argument that the issue of probable cause should be determined at trial is unconvincing in this case.   The lawfulness of Defendant's arrest is an element of the crime, and therefore must be alleged in the Complaint.   People v. Dumas, supra.   The Court of Appeals has twice dismissed Complaints that failed to establish probable cause for Defendant's arrest.  People v. Alejandro, supra (dismissing a Complaint that failed to establish probable cause for Defendant's arrest);  People v. Peacock, 68 N.Y.2d 675, 496 N.E.2d 683, 505 N.Y.S.2d 594 (1986) (a Complaint merely stating that the arresting officer observed Defendant arguing with another person and crying failed to establish probable cause, and could not sustain a charge of Resisting Arrest).

While the People cite cases holding that a Defendant can be convicted of Resisting Arrest without being convicted of an underlying crime, (See People v. Williams, supra ), the Complaint fails to allege facts that would have given the Police Officer probable cause to arrest the Defendant.   See Discussion Infra.   In this state, standing on a subway platform is not an offense worthy of arrest.   See People v. Jones, supra.

Conclusion

For the foregoing reasons, we find that the Complaint insufficiently alleges Disorderly Conduct and Resisting Arrest.   Defendant's motion to dismiss the instrument pursuant to CPL §§ 170.30(1)(a), 170.35(1)(a)-(b), 100.15, and 100.40, is therefore granted.

This constitutes the decision and order of this Court.

FOOTNOTES

1.   The Jones decision appears to have partially overruled, sub silentio, the Court's previous ruling in People v. Todaro, 26 N.Y.2d 325, 258 N.E.2d 711, 310 N.Y.S.2d 303 (1970).

MICHAEL GERSTEIN, J.