People v Tavares

[*1] People v Tavares 2009 NY Slip Op 51863(U) [24 Misc 3d 1243(A)] Decided on August 26, 2009 Criminal Court Of The City Of New York, New York County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 26, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Raul Tavares, Defendant.



2009NY031196

Elisa S. Koenderman, J.

The defendant, Raul Tavares, is charged with Unlawful Possession of Marihuana, Penal Law ["PL"] § 221.05 and Disorderly Conduct, PL § 240.20(5). The defendant has moved in an omnibus motion for dismissal of the disorderly conduct charge for facial insufficiency [FN1]; suppression of physical, statement and identification evidence; disclosure of unnoticed statements and a pretrial "voluntariness" hearing thereon; and preclusion of statement or identification evidence for which the People have not served proper notice. The defendant's motion is decided as follows.

FACIAL SUFFICIENCY

In order to be facially sufficient, an information must substantially conform to the formal requirements of Criminal Procedure Law ["CPL"] § 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL § 100.15[3] & 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]).

The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (Alejandro, 70 NY2d at 138,quoting1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101 [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and [*2]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, 360 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 8 Misc 3d 428, 429 [2005]). Ultimately, "the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" (People v Barona, 19 Misc 3d 1122[A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).

The misdemeanor complaint alleges, in relevant part, that at about 9:38 p.m. on April 17, 2009, at 110th Street and Amsterdam Avenue in New York County, Police Officer John Oleary observed the defendant "screaming and running down the street blocking the pathway of approximately three (3) pedestrians, and forcing said pedestrians to walk around the defendant."

The defendant argues that the criminal complaint "fails to establish either that [the defendant] intended to breach the peace or that he recklessly created a risk of doing so." He claims that running down the street and yelling are everyday occurrences in New York City and that the factual allegations therefore are too vague and conclusory to establish the offense of disorderly conduct.

Under Penal Law § 240.20(5), "a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... he obstructs vehicular or pedestrian traffic." Under Penal Law § 15.05(3), "a person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustified risk that such result will occur or that such circumstance exists."

The disorderly conduct statute was intended to include various forms of misconduct which at common law would often be prosecuted as public nuisances (see People v Munafo, 50 NY2d 326, 330-331 [1980]). The aim of the disorderly conduct statute, like the English statute after which it was modeled, is "to deter breaches of the peace or, more specifically, of the community's safety, health or morals" (id. at 331). A "breach of the peace" was defined at common law as "a disturbance of public order by any act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community" (People v Most, 171 NY 423, 429 [1902]). This concept has been codified as the element of "public inconvenience, annoyance or alarm" contained in the disorderly conduct statute (Munafo, 50 NY2d at 331; People v Jackson, 18 Misc 3d 1102[A], 2007 NY Slip Op 52383[U] [Crim Ct, NY County 2007]). Because disorderly conduct is reserved for situations that carry beyond the concern of individual disputants to the point where they become a public problem, the behavior proscribed by the statute "must be of public rather than individual dimension" (id.). In determining whether a particular act has public ramifications, the court must consider "the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and place of the episode under scrutiny" (id.). Nevertheless, the statute does not require [*3]proof of the "accomplished fact of public inconvenience, annoyance or alarm" but only proof from which the "risk of it, recklessly created, might be inferred" (People v Todaro, 26 NY2d 325, 328 [1970]; Jackson, 18 Misc 3d at 2).

In order to be held criminally liable for obstructing pedestrian traffic under Penal Law § 240.20(5), "something more than a mere inconvenience of pedestrians is required to support the charge" (People v Jones, 9 NY3d 259, 262 [2007]; see also People v Carcel, 3 NY2d 327, 331 [1957]; People v Pearl, 66 Misc 2d 502, 502-503 [1st Dept 1971]). "Otherwise, any person who happens to stop on a sidewalk - whether to greet another, to seek directions or simply to regain one's bearings - would be subject to prosecution" (id.; see also Carcel, 3 NY2d at 332; People v Nixon, 248 NY 182, 187-188 [1928]). Accordingly, testimony that a defendant paraded four abreast with approximately twenty other individuals up and down a sidewalk, causing several pedestrians to enter the street, was insufficient to sustain a conviction for disorderly conduct (Nixon, 248 NY at 185). Similarly, allegations that a defendant stood unmoving in the middle of a public sidewalk, causing numerous pedestrians to walk around him, failed to establish a prima facie case for disorderly conduct (Jones, 9 NY3d at 262-263).In other words, those congregating on the street may display "atrociously bad manners" by "discommod(ing) some other persons" but do not necessarily commit disorderly conduct (id., quoting Nixon, 248 NY at 185 [internal citations omitted]).

The defendant argues that his conduct "must be measured within the context of the normal, everyday obstacles faced by pedestrians in New York City" and that the "dense and unyielding nature of New York City traffic" renders his conduct consistent with "the nature of the beast." He claims that the only evidentiary facts proffered in support of the allegation that he created, or risked creating, a public disturbance is that three people walked around him. Thus, he contends that his conduct is comparable to that of the defendant in Nixon and that, consequently, the disorderly conduct charge must be dismissed as facially insufficient.

Here, however, the defendant did more than simply inconvenience pedestrians by congregating on the street and blocking their passage. The defendant was observed screaming and running down a New York City street, causing three people to move out of his way. Screaming on a public sidewalk "tends quintessentially towards a breach of the peace" (Jackson, 18 Misc 3d at 2). Moreover, the defendant was not just screaming on a sidewalk; he was also running while he was screaming. That his conduct actually created public inconvenience, annoyance or alarm is demonstrated by the fact that three people were compelled to walk around the defendant as he was running and screaming, presumably in order to avoid him. A defendant's intent may be inferred from "the natural and necessary and probable consequences" of his actions (People v Getch, 50 NY2d 456, 465 [1980]). On their face, the factual allegations provide reasonable cause to believe that it was the defendant's conscious objective to cause public inconvenience, annoyance or alarm or, alternatively, at a minimum, that the defendant consciously disregarded a substantial and unjustifiable risk that such a result would occur (see Jackson, 18 Misc 3d at 4; see e.g., People v Diaz, 22 Misc 3d 624, 626, 2008 NY Slip Op 28481 [Crim Ct, NY County 2008]). That there may be some other innocent explanation for the defendant's conduct is an issue for trial. The People need not, for pleading purposes, disprove every conceivable defense (see People v Deegan, 69 NY2d 976, 979 [1987]; Barona, 19 Misc 3d at 3). The complaint is [*4]sufficiently detailed to enable the defendant to prepare a defense and prevent him from being tried twice for the same offense (see Casey, 95 NY2d at 354). While the People must still meet their burden of proof at trial, their much lower burden at the pleading stage has been met. The defendant's motion to dismiss for facial insufficiency is therefore denied.

REMAINING MOTIONS

A Mapp hearing is ordered on the defendant's motion to suppress physical evidence. A Huntley/Dunaway hearing is ordered on the defendant's motion to suppress statement evidence. A Wade/Dunaway hearing is ordered on the defendant's motion to suppress identification evidence. Preclusion of statement or identification evidence for which the People failed to provide proper notice without good cause case is denied with leave to renew should the People seek to introduce any such evidence in their direct case. The People are directed to disclose any unnoticed statements which they intend to use upon cross-examination of the defendant and a ruling as to their admissibility is reserved to the trial court.

This constitutes the decision and order of the Court.

Dated:August 26, 2009

New York, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1: The defendant initially sought dismissal of both counts due to facial insufficiency but in court, on May 6, 2009, he withdrew the motion with respect to the unlawful possession of marihuana charge.