People v Fitzgerald
Annotate this CaseDecided on August 1, 2006
Crim Ct, New York County
The People of the State of New York, Plaintiff,
against
Craig Fitzgerald, Defendant.
2006NY018928
Gerald Harris, J.
The complaint charges that the defendant, Craig Fitzgerald, on a Saturday evening in mid-town Manhattan, shouted obscenities at pedestrians causing them to move away and express alarm. It is further alleged that the defendant refused a police order to leave and, when arrested, twisted away from the officer and flailed his arms. The defendant is charged with two counts of disorderly conduct, PL 240.20 (3) and PL 240.20 (6) and with resisting arrest.
The defendant moves, pursuant to CPL Sections 100.40, 170.30 and 170.35, to dismiss the entire complaint as facially insufficient. Defendant's motion argues that since the defendant's alleged offensive conduct involves speech alone, the charge of disorderly conduct, for using obscene and abusive language, must be dismissed as an unconstitutional infringement of defendant's right of protected speech, since the language used by defendant did not constitute "fighting words". Defendant's constitutional analysis, which relies heavily on People v. Dietze, 75 NY2d 47 (1989) and Chaplinsky v. New Hampshire, 315 US 568 (1942), is flawed.
The Court of Appeals, in People v. Tichenor, 89 NY2d 769, cert. denied 522 US 918 (1997), has made clear that when words are used with the intent to create a public disturbance, as contrasted with abusive language directed at an individual, the speaker is not entitled to constitutional protection. People v. Tichenor, at page 775. Thus, the issue is not whether the language used by defendant constituted a genuine threat or fighting words but rather whether the complaint adequately alleges facts from which it reasonably may be inferred that the defendant acted with an intent to create a risk of public disorder which the State has the authority and responsibility to prohibit, prevent and punish. People v. Tichenor, id. Indeed, it is sufficient for the People to show that the defendant's conduct recklessly created the risk of public inconvenience, annoyance or alarm. People v. Todaro, 26 NY2d 325 (1970); People v. Rodriguez, NYLJ 6/21/02, page 20, column 2 (Crim. Ct. NY Co.).
On this motion to dismiss for facial insufficiency, the test is not nearly as stringent as at trial, where proof is required beyond a reasonable doubt. People v. Henderson, 92 NY2d 677 (1999).
In determining whether the complaint adequately alleges an intent on the part of the defendant to cause public inconvenience, annoyance or alarm or a recklessness creating such a risk, the court must consider the following factors: the extent to which defendant's conduct annoyed others; whether the defendant persisted in the conduct after warnings by others or the police; whether the defendant's conduct created at least a risk that disorder might result and whether the defendant's conduct occurred in a public location. People v. Maher, 137 Misc 2d 977 (App. Term), lv. denied 74 NY2d 794 (1989).
Here, the complaint, in substance, alleges that the defendant was loudly cursing pedestrians in a heavily traveled area of the city, causing them to move away and express alarm, and that he continued to do so in the face of a police directive to cease. From these allegations it reasonably may be inferred that the defendant either intended to cause a public disturbance or was aware of and consciously disregarded a substantial and unjustifiable risk that public [*2]inconvenience, annoyance or alarm might result from his conduct. People v. Todaro, supra, People v. Rodriguez, supra.
Accordingly, defendant's motion to dismiss the second count of the complaint, charging a violation of PL 240.20 (3), is denied. Defendant's motion to dismiss the third count, charging a violation of 240.20 (6), is granted, since there are no allegations in the complaint that the defendant was congregating with others when he disobeyed a police order to disperse.
The defendant's motion to dismiss the charge of resisting arrest (the first count of the complaint) is also denied. It is an essential element of the crime of resisting arrest that the arrest be authorized, that is, the arresting officer must have reasonable cause to arrest the defendant for the commission of some offense. People v. Alejandro, 70 NY2d 133 ( 1987); People v. Peacock, 68 NY2d 675 (1986).
Since the complaint sets forth facts from which it may be inferred that the police had reasonable cause to arrest the defendant for disorderly conduct, the arrest was an authorized one. By alleging that the defendant twisted his body and flailed his arms, the complaint adequately sets forth a basis for the charge that the defendant resisted arrest. (People v. Stevenson, 31 NY2d 108 (1972)) (not necessary that defendant use force or violence - it is enough that he engage in some conduct with the intent of preventing his authorized arrest).
The People have not given notice of an intent to offer statement or prior identification evidence. Defendant's motion to preclude such evidence is, therefore, granted. Defendant's discovery request is granted to the extent of the voluntary disclosure form and bill of particulars furnished by the People. Permitted use of prior bad acts or convictions, to cross-examine
the defendant, is referred to the trial court.
This opinion constitutes the decision and order of the court.
Dated: August 1, 2006___________________________________
New York, New York GERALD HARRIS
Judge of the Criminal Court
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