People v Holland (Byron)

[*1] People v Holland (Byron) 2015 NY Slip Op 51727(U) Decided on November 30, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570606/10

The People of the State of New York, Respondent,

against

Byron Holland, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County, (Eileen Koretz, J.H.O.), rendered May 25, 2010, after a nonjury trial, convicting him of disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (Eileen Koretz, J.H.O.), rendered May 25, 2010, reversed, on the law, and accusatory instrument dismissed.

Defendant was charged in a misdemeanor information with resisting arrest, criminal trespass in the third degree, trespass and disorderly conduct. The factual portion of the information alleges that defendant was observed inside a "clean halls" apartment building that was marked with "no trespassing" signs; when questioned by police, defendant responded "my family lives in the building . . . I don't know what apartment"; and that while police were attempting to arrest defendant for these actions, defendant "flailed his arms, twisted his body, and kicked his legs in an attempt to prevent handcuffing." The resisting arrest, criminal trespass in the third degree and trespass charges were dismissed and, after a subsequent nonjury trial, defendant was convicted of disorderly conduct.

We agree with defendant that the information charging him with disorderly conduct is jurisdictionally defective because it fails to provide factual allegations that his conduct was intended to or recklessly created a substantial risk of "a potential or immediate public problem" (People v Munafo, 50 NY2d 326, 331 [1980]). Absent any allegation that there were any bystanders or spectators who witnessed the incident prior to the arrest, the allegations failed to describe a "situation[] that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem" (id.; see People v Jackson, 18 Misc 3d 134[A], 2008 NY Slip Op 50169[U] [App Term, 1st Dept 2008], lv denied 10 NY3d 841 [2008]; People v Moreno, 47 Misc 3d 138[A], 2015 NY Slip Op 50587[U] [App Term, 2d, 11th and 13th Jud Dists 2015, lv denied 25 NY3d 1168 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: November 30, 2015