PEOPLE v. SALAZAR

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Freen S. SALAZAR, Appellant.

Decided: November 24, 2006

Present:  RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ. Barton Barton & Plotkin, LLP, New York City (Thomas P. Giuffra of counsel), for appellant.

Appeal from a judgment of the Justice Court of the Village of Brewster, Putnam County (Richard L. O'Rourke, J.), rendered December 14, 2005.   The judgment convicted defendant, after a nonjury trial, of disorderly conduct.

Judgment of conviction reversed on the law, fine, if paid, remitted and information dismissed.

 Defendant was convicted of having violated Penal Law § 240.20(5) which provides, “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ․ [h]e obstructs vehicular or pedestrian traffic․” Said provision punishes disruptive behavior of a public rather than individual dimension (Provost v. City of Newburgh, 262 F.3d 146, 157 [2001] ).   It “applies to words and conduct reinforced by a culpable mental state to create a public disturbance” (People v. Tichenor, 89 N.Y.2d 769, 775, 658 N.Y.S.2d 233, 680 N.E.2d 606 [1997];  see also People v. Munafo, 50 N.Y.2d 326, 331, 428 N.Y.S.2d 924, 406 N.E.2d 780 [1980] ).

 In the case at bar, the People's own proof established the occurrence of an “accident.”   The evidence showed that at 10:13 P.M., the intoxicated pedestrian defendant turned into the path of a patrol car which was approaching from behind him and, after being struck, rolled over the hood onto the ground, got up and began walking.   There was no proof of other cars being at the scene at the time.   Deputy Quick, who had been driving the patrol car, had defendant sit down and called a supervisor.   At the direction of his supervisor, Deputy Quick summoned fire engines and closed down the road.   This resulted in a traffic jam with the ensuing public inconvenience and annoyance.   Under the circumstances, the “public” dimension of the incident should be deemed too remote to sustain defendant's conviction (cf. People v. Richards, 17 A.D.3d 489, 792 N.Y.S.2d 625 [2005] [defendant engaged in disorderly conduct by fleeing from the police through the street and obstructing vehicular traffic, after several officers had noted that he resembled a composite sketch of an assailant they were seeking, that he was in the vicinity of the two crime scenes, that he was looking around nervously and that they approached him to request identification and to ascertain his purpose for being in the area];  Beaver v. Batrouny, 71 A.D.2d 821, 822, 419 N.Y.S.2d 391 [1979] [teenaged boys playing touch football in street did not violate Penal Law § 240.20(5) notwithstanding injury to pedestrian] ).