People v Zherka
Annotate this CaseDecided on October 5, 2009
Mount Vernon City Court
The People of the State of New York,
against
Selim Zherka, Defendant.
08-5013
Westchester County District Attorney's Office
Mount Vernon branch
Jonathan Lovett, Esq.
Attorney for Defendant
37A Saw Mill River Road
Hawthorne, New York 10532
Adam Seiden, J.
A bench trial was held in this proceeding charging the defendant with two counts of disorderly conduct in violation of Penal Law sections 240.20 (2) and (3).
A person is guilty of disorderly conduct under the sections charged when "with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
"2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene
gesture (P.L. 240.20)."
The violation information charges, that on October 31, 2008, between 11:00 am and 11:30
am at 1 Roosevelt Square, otherwise known as the City Hall of Mount Vernon, the defendant,
with intent to cause public annoyance or inconvenience, or recklessly creating a risk thereof,
"did refuse to leave the public hallway of 1 Roosevelt Square while yelling at your deponent
[P.O. Morris], I pay your fucking salary. You shouldn't be a fucking cop.' When your deponent
continued to ask the defendant to leave the area, the defendant persisted in yelling at your
deponent, I am not leaving until I speak to the Mayor and the Commissioner.'" The information
further charges that "the defendant's actions caused a group of 4-5 people to gather in the area.
Your deponent continued to ask the defendant to calm down and to leave the area, to which the
defendant refused while continuing to make unreasonable noise in the public hallway."
Findings of Fact:
On October 31, 2008, the Comptroller's Office of the City of Mount Vernon held an auction on foreclosed properties inside the Mount Vernon City Council Chamber on the second floor of Mount Vernon City Hall. At the trial, Thomas Rijala, 1st Deputy Comptroller, testified that the auction was scheduled to start at 11:00 am, however, it started at 11:10 am because the doors were not opened on time. Forty-three people pre-registered for the auction, including the defendant. The bidders received paddles as they entered the auction. Mr. Rijala testified that the late arrival of bidders continuously disrupted and halted the bidding process because the bidders had to pick up their paddles as they entered. Accordingly, Mr. Rijala asked that the doors of the [*2]auction be closed to avoid further disruption. He testified that the auction ended at 11:45 am.
Susie Valentin, 2nd Deputy Comptroller, similarly testified that the late arrival of bidders was continuously disrupting the auction. Ms. Valentin testified that she advised the two police officers at the doors, Officers Vincent Pasqua and Bahiyah Morris, to close the doors and not to let anyone else in. According to Ms. Valentin's written statement, she advised the officers to close the doors at 11:40 am, however, on cross-examination, she explained that the time listed on her statement was a guess. Both Mr. Rijala and Ms. Valentin testified that they heard no screaming, yelling or obscenities from outside the auction doors, while they were working inside the auction.
Police Officer Bahiyah Morris testified that on October 31, 2008, she was working the 8:00 am to 4:00 pm shift on routine patrol. At 11:02 am, she was told to respond to the City Council chamber to relieve Police Officer Pasqua and keep "the order and peace". Shortly thereafter, Ms. Valentin emerged from inside the auction and advised both officers not to allow any other people inside. Officer Pasqua then left and proceeded downstairs after which an identified man approached Officer Morris and asked to enter the chamber. Officer Morris advised the man that they were not letting anyone else in and the man left. Shortly thereafter, the defendant, accompanied by two other men, Peter Bruni and Rob DeBenedictis, approached and asked to get in. Officer Morris testified that she told the defendant that he could not enter the auction and that "he got loud", "irate", and started yelling profanities, in particular stating to Officer Morris, "I pay your fucking salary", "You shouldn't be a cop", and "You don't deserve to be a fucking cop." Officer Morris stated that a group of people walked up while the defendant was yelling then stopped and watched. Included in the group were three people, Yolanda Robinson, the Mayor's Chief of Staff, John Boykin, and another individual. Officer Morris testified that in spite of her repeated warnings to the defendant to calm down and stop yelling, he continued to carry on in the same fashion. Officer Morris radioed for backup. Police Officer Pasqua responded and they both escorted the defendant downstairs. Police Officer Morris spoke with her sergeant, Glenn Scott, outside City Hall. She further testified that she observed the defendant speaking with Police Commissioner Chong.
Officer Pasqua also testified at the trial. He stated that he was standing in front of the City Council chamber at around 11:15 to 11:20 am when Ms. Valentin emerged from the auction and advised them not to allow anyone else inside. Officer Pasqua went back downstairs to his normal post. Shortly thereafter, after hearing an officer in need of assistance call on the radio, he went back upstairs. From forty feet away, he observed the defendant yelling and shouting at Officer Morris. There, he also observed a crowd of ten to fifteen people outside of the chamber doors. In that crowd were Rudy Persaud from the Department of Public Works and Ms. Robinson. Officer Pasqua testified he saw Mr. Boykin with his arm around the defendant and that they were both walking towards the stairwell. Officer Pasqua then assisted Officer Morris in escorting the defendant out of the building. The officer further testified that he heard the defendant call Officer Morris a "fucking bitch" and that "he would have her job". Commissioner Chong arrived at City Hall and Officer Pasqua returned to the Council chambers. [*3]
Rudy Persaud, a Public Works Supervisor for the City, testified as well. He stated that between 11:20 and 11:30 am he accompanied Yolanda Robinson upstairs to the City Council chamber to get car keys from Mr. Boykin. When he arrived at the top of the stairs, he heard the "single voice" of a male engaged in a "loud argument". As he proceeded to walk to the chamber doors, he observed a female officer and the defendant. He then observed two to three people emerge from the chambers, including Mr. Boykin. Mr. Persaud testified that the defendant was talking "very loud" while demanding that he be allowed to enter the City Council chamber. Mr. Persaud stated the Ms. Robinson interceded in the conversation between the officer and the defendant, identified herself as the Chief of Staff and asked the defendant if she could help him. Mr. Persaud testified that the defendant did not respond to Ms. Robinson as he was still engaged in an argument with the officer, wherein he heard the defendant state "I pay your damn salary. I pay your boss' salary. I got to get in there." Mr. Persuad described the situation as "uncomfortable" and opinioned that the "females were being taken advantage of". Mr. Persaud testified that he observed people emerge from adjacent offices, including the planning department. Mr. Persaud retrieved the keys from Mr. Boykin and left City Hall.
Yolanda Robinson, the Chief of Staff of the City of Mount Vernon, testified on the date in question, she was walking upstairs to go into the public auction. As she arrived on the second floor, she observed a commotion near council chambers, encompassing four to five people. Ms. Robinson saw and heard the defendant, not previously known to her, talking loud as a crowd of ten or more people began to gather. As she got closer, she heard the defendant stating to Officer Morris "You're not fit to wear the uniform. I pay your salary." Ms. Robinson approached the defendant and identified herself but the defendant ignored her. Mr. Boykin then emerged from the auction. Mr. Boykin attempted to try to calm the defendant down during the "tirade" with Officer Morris. Ms. Robinson then informed Officer Morris to "call for backup", telling her "You don't have to take this". Ms. Robinson stated that she was alarmed for staff and members of the public that were in City Hall, who gathered and ultimately descended to the first floor of City Hall as the defendant was escorted out of the building by Officer Morris and another officer. Ms. Robinson saw Commissioner Chong outside, where she informed him of what had just occurred.
Larry Fair, the maintenance person for City Hall, testified that he was inside the auction, stationed at the rear door of the City Council chamber. Mr. Fair locked the rear doors upon being advised by Mr. Rajala that attendees arriving late were disturbing the auction. While standing at the chamber doors, Mr. Fair heard a commotion outside, in the hallway, and proceeded to go to the front door to find out what was happening because it was disrupting the auction. He opened the door and observed the defendant yelling and talking loudly to a female police officer, stating that he wanted to get in the auction. The officer told defendant, "If you don't calm down you will be arrested." Mr. Fair also observed Mr. Boykin, Ms. Robinson and other people he could not identify in the hallway. After Mr. Fair re-entered the auction he continued to hear loud voices in the hallway.
Peter Bruni, testified on behalf of the defendant. He accompanied the defendant to the auction; Mr. DeBenedictis met up with them in City Hall. He testified that they [*4]arrived at the City Council chamber a few minutes after 11:00 am. Upon arriving at the auction doors they encountered an African-American female police officer by the door, who told them that the "auction is closed". Mr. Bruni testified that the defendant asked the officer, in a "loud and clear" voice, "Who gave you the order?". He further testified that the defendant repeatedly asked the officer who gave her the order and that the officer repeatedly asked him to "step away". Mr Bruni testified that the defendant was standing five to six feet away from the officer, and that he was not yelling, but was loud. The defendant told the officer "I'm going to record this conversation" and that he had a right to be in there. Mr. Bruni testified that Ms. Robinson and Mr. Boykin arrived. The defendant told Robinson he was trying to get in the auction and that the officer refused to let him it. Ms. Robinson told defendant that she did not like the way he was talking and acting and that he needed to "leave the building". Mr. Bruni testified that defendant did not curse but did state, "I pay your salary." At this point, Mr. Bruni told the defendant they should go outside to "cool off". Mr. Bruni observed someone look out the auction door and then close it. He testified that there were 2-4 people walking around in the hall.
Lastly, the defendant, Selim Zherka, also known as Sam Zherka, testified on his own behalf.
The defendant testified that he pre-registered to attend the auction taking place in City Hall on
October 31, 2008. Defendant stated that he arrived at the auction doors at 11:04 am with Mr.
Bruni and Mr. DeBenedictis. As they were walking to the chamber doors, the defendant
observed a police officer standing at the door. The defendant stated that he observed the officer
allow a black male with dreadlocks to enter the door without question. When he reached the
door, Officer Morris stated to him, "The auction is closed", "Do you understand English?" and
"Get out of my face." In turn, defendant stated, "Who gave you authority to close it down."
Defendant then pulled out his tape recorder and turned it on. He further told Officer Morris,
"You work for me", "Quit your job if you do not like it" and "I'm a taxpayer". Thereafter,
defendant called the Mayor and Police Commissioner and left messages. The defendant stated
that Ms. Robinson approached Officer Morris while he was standing 10 to 15 feet away from
Police Officer Morris. He testified that Ms. Robinson asked Officer Morris "What's going on?".
Defendant advised that Officer Morris was "irate" and lacked courtesy, professionalism and
respect. Soon thereafter, Mr. Boykin and Jamie Dickerson emerged from the auction doors. The
defendant testified that Mr. Boykin, the Mayor's former assistant and Mr. Dickerson, a local
realtor, had been waiting for the defendant in the auction room. Defendant testified that Mr.
Boykin attempted to diffuse the situation, but Ms. Robinson told him to "Mind his business or
you will go to jail with him." He further stated that he heard Ms. Robinson state, "That white
mother fucker fucked with the wrong one." The defendant stated that he left the second floor
with Mr. Bruni, Mr. Boykin and Mr. DeBenidictis, not with a cop. He acknowledged that Mr.
Bruni did tell him to calm down. The defendant testified that no one came out of their respective
offices or the chambers, and that the testimony of previous witnesses is based on "fabrication".
Finally, the defendant testified that he spoke with Commissioner Chong outside and advised him
that his only intention in coming to City Hall was the auction. Commissioner Chong later
returned to him and stated "She wants you arrested" and advised defendant that he was going to
receive a summons for Disorderly Conduct.[*5]
Conclusions of Law:
Based upon the credible testimony, the court finds that the defendant's guilt on both of the charges of disorderly conduct (under CPL 240.20 (2) and (3)) was established beyond a reasonable doubt (People v Todaro, 26 NY2d 325 (1970)).
The aim of the disorderly conduct statute is for situations that are carried beyond the concern of individual disputants to a point where they become a potential or immediate public problem. In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny (People v Munafo, 50 NY2d 326 (1980)). The statute does not require 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 Tavares, 2009 NY Slip Op 51863U (Crim Ct. New York Co. 2009) (emphasis added) (citing People v Todaro, supra; People v Jackson, 18 Misc 2d 1102 [A] (Crim Ct. New York Co. 2007)). Under Penal Law § 15.05, "A person acts recklessly . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." A defendant's intent may be inferred from "the natural and necessary and probable consequences" of his actions (People v Tavares, supra (citing People v Getch, 150 NY2d 456, 465 (1980)).
After assessing the credibility of each witness presented, the Court finds that the evidence demonstrated that the defendant recklessly created a risk of public inconvenience, annoyance or alarm, when in a public building, during normal working hours, directly outside the doors where a public auction was being held, in the presence of approximately 5 to 10 members of the public and/or personnel of Mount Vernon City Hall, he made unreasonable noise by loudly cursing and yelling at a police officer and used abusive and obscene language towards the police officer who was attempting to maintain peace and order outside of a public auction. The term "unreasonable noise" means a noise of a type or volume that a reasonable person, under the circumstances would not tolerate'" (Provost v City of Newburgh, C.A.2 (NY), 262 F.3d 146 (2001) (citing People v Bakolas, 59 NY2d 51 (1983)). After being told that the auction was closed by Police Officer Morris, defendant became loud and disruptive, causing visitors and/or personnel of the planning department to leave that office and stop and watch the commotion in the hallway. Larry Fair credibly testified that the noise could be heard from inside the auction room. The defendant refused to stop talking loud and yelling despite being told to calm down and lower his voice several times. Defendant's own witness, Mr. Bruni testified that the defendant was talking in a "loud and clear" voice and that he advised the defendant he should go outside and "cool off". Defendant, by his own testimony acknowledged that he is loud and passionate and that he repeatedly told Officer Morris that she worked for him and should quit if she did not like her job. Further, during trial, witnesses credibly testified that they heard the defendant state, "You shouldn't be a fucking cop", "I pay your fucking salary" and refer to Police Officer Morris as a "fucking bitch". The Court finds that the defendant's use of such obscene [*6]language, while standing 5-6 feet from Officer Morris with a crowd assembled, was publicly abusive, demeaning and had no legitimate purpose (People v Brown, 116 AD2d 727 (2d Dept 1986) ("What the fuck is your problem, you can't do shit" directed at officer in public location with onlookers constituted abusive and obscene language within meaning of disorderly conduct statute). Accordingly, the Court finds that the defendant, by his actions, recklessly engaged in conduct which caused a public inconvenience, annoyance or alarm.
Based upon the circumstances present here, the Court finds the defendant guilty on both
counts of disorderly conduct.
Dated: October 5, 2009
Mount Vernon, New York
______________________________
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
Westchester County District Attorney's Office
Mount Vernon branch
Jonathan Lovett, Esq.
Attorney for Defendant
37A Saw Mill River Road
Hawthorne, New York 10532
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