People v Timpone

[*1] People v Timpone 2006 NY Slip Op 51025(U) [12 Misc 3d 1164(A)] Decided on May 25, 2006 Nassau Dist Ct Kluewer, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2006
Nassau Dist Ct

The People of the State of New York, Plaintiff

against

Michael G. Timpone, Defendant



NA 01960/06



Honorable Kathleen Rice, District Attorney

240 Old Country Road

Mineola, NY 11501

Francis B. A'Hearn, Esq.

600 Front Street

Hempstead, NY 11550

Susan T. Kluewer, J.

Defendant's motion for an order dismissing the accusatory instrument as [*2]facially defective is granted.

Defendant is accused, by information (see CPL 100.10[1]), of disorderly conduct in violation of Penal Law § 240.20(7), the elements of which are creating a hazardous or physically offensive condition by an act which serves no legitimate purpose, and doing so with intent to cause public inconvenience, annoyance or alarm, or recklessly creating the risk thereof. The complainant (see CPL 100.15[1]) is Michael Stafford, a New York State Trooper. He attests that, on January 14, 2006 at 7:37 p.m., Defendant:

"did act in a hazardous and physically offensive condition by arguing and yelling you don't know what the fuck you are talking about,' to member on the shoulder of the Northern State Pkwy, eastbound at exit 36, while trying to conduct an accident investigation with oncoming traffic during hazardous winter weather conditions. Member requested subject to move over to the other side of the vehicle for his own safety. Subject refused. Member again, advised subject numerous times, to stop creating a hazardous and unsafe condition. At this time, subject did fail to comply again, and walked back over toward the roadway, causing a hazardous and unsafe condition for both member and subject at scene. Subject was placed into custody and stated to member your doing this to me because I'm Italian and I drive a sports car'."

In support of his application to dismiss the accusatory instrument, Defendant asserts that the disruptive conduct prohibited by Penal Law § 240.20 must be of a public rather than a private nature, and that either there must be "substantial" public inconvenience, annoyance or alarm or that the risk of a breach of the peace must appear "beyond a reasonable doubt." The People in opposition posit that the facts alleged must merely establish "reasonable cause" to believe that Defendant committed the offense charged. They cavalierly submit as an exhibit a supporting deposition a document that is not part of the accusatory instrument and posit that the allegations of the factual part of the information "in combination with the supporting deposition" provide "reasonable cause to believe" that Defendant committed the offense charged. By that supporting deposition, Trooper Stafford, now using the first person, attests that:

"I was the officer present at the shoulder of the Northern State Parkway eastbound at exit 36, and while I attempted to conduct an accident investigation the defendant in this case known to me now as Michael Timpone did act in a disorderly manner as he refused to move over to the other side of the vehicle and put both his own safety and my safety in jeopardy by creating a hazardous and unsafe condition. He failed to comply with my request more than one time and as [*3]he was placed into custody by me he stated you're doing this to me because I am Italian and I drive a sports car.' I am the person mentioned as member' on the original information and that information is based on my personal knowledge of the events of January 14, 2006 as they occurred in my presence."

It is well settled that in order to be sufficient, an information must both provide reasonable cause to believe that the defendant committed the offense charged, and contain sworn, non-hearsay allegations supporting every element of that offense, and the defendant's commission thereof (see CPL 100.15, 100.40[1]). The information thus must demonstrate the existence of a prima facie case (People v Henderson, 92 NY2d 677, 685 NYS2d 409 [1999]), but the prima facie case requirement "is not the same as the burden of proof beyond a reasonable doubt" (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; People v Henderson , supra ) and, if the facts attested to by a complaining witness give rise to a reasonable inference that a defendant acted with the requisite mental culpability, an accusatory instrument will not be dismissed on the ground that the mental culpability element is inadequately premised (cf. CPL 100.15, 100.40; see e.g., People v. McGee, 204 AD2d 353, 611 NYS2d 261 [2d Dept. 1994]; People v. Li, 192 Misc 2d 380; [Nassau Dist Ct 2002]; People v. Coyle, 186 Misc 2d 772 [Nassau Dist Ct 2000]). In determining whether an information is sufficient, the court is limited to reviewing the facts as they are set forth in the four corners of the document (see People v. Voelker, 172 Misc2c 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1]), but a court need not dismiss, and may allow the People time to formally cure if they demonstrate both an intention, and an ability, to do so (see People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; see also People v. Clinkscales, supra ; People v. Cobb, 2 Misc 3d 237, 768 NYS2d 295 Crim Ct, Queens County, 2003, Zayas, J.]; People v. Romano, 188 Misc 2d 368, 728 NYS2d 868 [Crim Ct, Queens County, 2001, Modica, J.]). In this instance, apart from the fact that the People appear to be unaware, both of any need to cure, and of the steps available to effectuate that cure (see People v. Clinkscales, supra ), there is no indication that they have a prima facie case to present.

As Defendant notes, disorderly conduct is an offense reserved for disruptive behavior that carries beyond the concerns of individual disputants (see People v. Munafo, 50 NY2d 326, 428 NYS2d 924 [1980]). Thus, Penal Law § 240.20(7) relating to disorderly conduct by the creation of a hazardous or physically offensive condition "contemplates not acts directed at individuals but rather situations such as throwing fireworks into a crowd or loosening noxious [*4]materials within a confined areas such as a theater" (Seymour v. Seymour, 56 Misc 2d 546, 547, 289 NYS2d 515, 516 [Fam Ct, Tioga County, 1968, Coon, J.); see also People v. Wharton, n.o.r., 2006 NY Slip Op 50712U, Nassau Dist Court, April 24, 2006, Pardes, J.]; and see People v. Cooke, 152 Misc 2d 311, 578 NYS2d 76 [Village of South Nyack Just Ct, 1991, Markewich J.]). Whether the conduct attributed to Defendant may constitute some violation of some other provision of the Penal Law or Vehicle and Traffic Law (see e.g. Penal Law § 120.20; Vehicle and Traffic Law § 1102; cf. Penal Law § 240.20[3]) is not before me. What is here dispositive is whether Trooper Stafford's allegations - even if properly supplemented by the later supporting deposition to reflect the active rather than the passive voice describe the creation of a hazardous or physically offensive condition affecting, or likely to affect, more than him and Defendant (see People v. Brown, 137 Misc 2d 172, 520 NYS2d 315 [Oswego City Court, 1987, Klinger, J.]; cf. People v. O'Leary, 153 Misc 2d 641, 583 NYS2d 881 [Oswego City Court, 1992, McCarthy, J.]; and see People v. Munafo, supra ). Not only does what Trooper Stafford set forth appear limited to a dispute between an authority figure and a citizen (see People v. Mufano, supra ), but, assuming the allegations to be true, what Trooper Stafford attests to is not the creation by Defendant of a hazardous or physically offensive condition, but instead that Defendant acted rudely, stupidly, even recklessly, in the face of the already-existing weather and traffic conditions. Since the accusatory instrument fails to demonstrate prima facie that Defendant violated Penal Law § 240.20(7), it must be dismissed.

So Ordered.