People v Halo

[*1] People v Halo 2006 NY Slip Op 51955(U) [13 Misc 3d 1223(A)] Decided on October 11, 2006 Criminal Court Of The City Of New York, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2006
Criminal Court of the City of New York, New York County

The People of the State of New York

against

John Halo, Defendant.



2006SC001747

Richard M. Weinberg, J.

Defendant is charged with Disorderly Conduct in violation of Penal Law §240.20(7). 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 . 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), the prima facie requirement is not the same as the burden of proof required at trial. People v Henderson, 92 NY2d 677. 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.

Penal Law §240.20(7) is violated when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, a person creates a hazardous condition by any act which serves no legitimate purpose.

The information accuses the defendant of violating the Disorderly Conduct statute and provides him with notice that he must defend against a charge that, on December 27, 2005 at 5:40 pm on the corner of W 42nd Street and Ninth Avenue, he yelled and cursed at a police officer while flailing his hands. It is alleged that defendant's acts caused vehicles and pedestrians to stop and created a hazardous condition which served no legitimate purpose. It is further alleged that defendant did this with the intent to cause public alarm and inconvenience. [*2]

Defendant argues that his "crude outburst" is Constitutionally protected speech, that he was merely exercising his "right to verbally oppose and challenge police action upon receiving a summons" and that such an exercise cannot be the basis for a charge of Disorderly Conduct. This Court has recently addressed and rejected a similar argument in People v Ramon Morena (12 Misc 3d 1190 [A]). There the Court refused to carve out a police exception to the Disorderly Conduct statute and held that "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." That holding, firmly based on People v Teichnor (89 NY2d 769), applies equally to this case.

In addition to his "Protected Speech" argument, defendant moves for dismissal on the ground that the Disorderly Conduct statute is void for vagueness. This argument was considered and soundly rejected in the Teichnor decision.

Defendant further argues that the accusatory instrument fails to make out a prima facie case of Disorderly Conduct in that defendant's actions did not create a hazardous condition. This argument is without merit. The information alleges that defendant's actions caused both vehicular and pedestrian traffic to stop during rush hour in mid-town Manhattan. This allegation is sufficient, prima facie, to establish that defendant's actions created a hazardous condition. Furthermore, the allegations in the information also establish violations of subdivisions 1 and 3 of the Disorderly Conduct statute. It is well settled that a conviction for Disorderly Conduct will be upheld if the evidence establishes a violation of any of the subdivisions, regardless of whether the complaint charges a defendant under one particular subdivision or another. People v Carcel, 3 NY2d 327; People v Todaro, 26 NY2d 325.

Defendant's motion to dismiss is denied.

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

This constitutes the decision and order of the Court.

Dated:___________________________

New York, New YorkJudge of the Criminal Court