People v Morena

[*1] People v Morena 2006 NY Slip Op 51507(U) [12 Misc 3d 1190(A)] Decided on July 27, 2006 Crim Ct, New York County Weinberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2006
Crim Ct, New York County

The People of the State of New York, Plaintiff,

against

Ramon Morena, Defendant.



2006SC003949

Richard M. Weinberg, J.

Defendant is charged with Disorderly Conduct in violation of Penal Law §240.20(3). He moves for an order dismissing the information as facially insufficient under Criminal Procedure Law §100.40, as well as other forms of relief.

Criminal Procedure Law §100.40 and, by reference, Criminal Procedure Law §100.15 require that factual allegations of an evidentiary character in the information provide reasonable cause to believe the defendant committed the offenses charged and that non-hearsay factual allegations establish a prima facie case that the defendant is guilty. People v. Allen, 92 NY2d 378 (1998). While an information must state the crime with which the defendant is charged and the particular facts constituting that crime (People v Hall, 48 NY2d 927 [1979]), the prima facie requirement is not the same as the burden of proof required at trial. People v Henderson, 92 NY2d 677 (1999). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading. People v. Casey, 95 NY2d 354 (2000).

Penal Law §240.20(3) is violated when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, a person uses abusive or obscene language or makes an obscene gesture in a public place.

The information accuses the defendant of violating this statute and provides him with notice that he must defend against a charge that, on March 24, 2006 at 11:21 pm on the northeast corner of W 45th Street and Eighth Avenue, he was observed by a police officer creating a public disturbance while in a dispute with a woman. When the police officer approached the defendant, the defendant screamed "Go fuck yourself. Fuck you cop." It is alleged that these words, addressed to the police officer, caused annoyance and alarm to the general public.

These factual allegations are sufficiently evidentiary in character to satisfy the relevant CPL requirements and the allegations tend to support the charge. The allegations establish [*2]reasonable cause to believe and a prima facie case that the defendant committed the charged offense. "At the pleading stage, nothing more is required." People v Allen, supra, at 385.

Defendant argues that "directing profanity at a police officer is not sufficient to constitute disorderly conduct" because "the character of the conduct is a private annoyance" and because "police officers are expected to exercise more restraint than a private citizen in dealing with unpleasant confrontations with civilians". To adopt defendant's arguments would be to effectively carve out a police officer exception from the disorderly conduct statute and to condone the heaping of verbal abuse upon a police officer regardless of the circumstances. This the Court will not do. While the Court recognizes that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers" (City of Houston, Texas v Hill, 482 US 451, 461 [1987]), the Disorderly Conduct statute applies without regard to the occupation of the targeted individual. See People v Tichenor, 89 NY2d 769 [1997]. Any person who directs abusive or obscene language at a police officer, under circumstances which cause or recklessly create a risk of public inconvenience, annoyance or alarm, will be held accountable for his conduct.

Defendant's motion to dismiss for facial insufficiency is denied.

Defendant's Sandoval application is referred to the Trial Court.

The defendant retains all rights to which he is entitled under CPL §255.20.

This constitutes the decision and order of the Court.

Dated: July 27, 2006_______________________

New York, New YorkJudge of the Criminal Court