PEOPLE v. JONES (2019)

The defendant is charged with criminal nuisance in the second degree (PL § 240.45(1)) and moves for omnibus relief. The Court will address the defendant's demands ad seriatim.

A person is guilty of criminal nuisance in the second degree “when by conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons.” The information sub judice alleges that the defendant “did recklessly and unreasonably organize, promote, and offer a backyard party to over one hundred and fifty people who were gathered in a fenced-in yard with two narrow exits and insufficient egress for the excessive number of persons” and that the safety and health of said persons was endangered when a shooting took place in the yard and necessitated persons to break through fencing to escape the incident. The information further alleges that “the excessive number of people unreasonably delayed” emergency response to aid the injured.

This Court finds that the information fails to set forth the requisite facts establishing, if true, the elements of criminal nuisance in the second degree. It has been held that “a public nuisance is an offense to the public of a neighborhood or community in the enjoyment of its common rights, as distinguished from activity which results merely in injury even to a large number of persons in the enjoyment of private rights not shared by the members of the community or neighborhood at large.” (See State v. Wright Hepburn Webster Gallery, Ltd., 64 Misc. 2d 423 [Sup. Ct. NY County, 1970], affd 37 AD2d 698 [1st Dept. 1971]). The allegations set forth in the within information do not rise to the level of a public nuisance. The Court also notes that, although the defendant is charged with “endanger[ing] the safety and health” of persons present at the premises, the factual allegations show that any purported danger was as a result of the shooting and the element of recklessness or knowledge is not demonstrated.

Accordingly, the defendant's motion to dismiss must be granted on sufficiency grounds. Upon issuance of the accompanying order, the Court shall furnish the defendant with notice pursuant to 22 NYCRR § 200.40. By reason of the foregoing, the defendant's CPL 30.30 motion is denied as moot.

Alfred C. Graf, J.