People v Tarrats

[*1] People v Tarrats 2013 NY Slip Op 52303(U) Decided on December 4, 2013 Ithaca City Ct Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2013
Ithaca City Ct

People of the State of New York, Plaintiff,

against

Ruben Tarrats, Defendant.



2013-76466



ADA Brad Rudin, Esq.

Tompkins County District Attorney's Office

320 N. Tioga Street

Ithaca, NY 14850

Jerome M. Mayersak, Esq.

308 N. Tioga Street

P.O. Box 6587

Ithaca, NY 14851

Scott A. Miller, J.

Defendant Ruben Tarrats moves for dismissal of the accusatory instrument charging Disorderly Conduct [PL §240.20(1)] upon the ground that such is facially insufficient pursuant to CPL §100.40. The Court has reviewed Defense Counsel Jerome Mayersak's moving papers and Assistant District Attorney Brad Rudin's response in opposition thereto.

For an information to be legally sufficient, it must contain non-hearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof (CPL §100.40). Subdivision 1 of CPL §100.40, expressly states that in order for an information to be legally sufficient:

(b)The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (c)Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant`s commission thereof.[*2]In People v. Casey, the Court of Appeals explained, "[s]o 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." 95 NY2d 354, 360 (2000). In deciding a defense motion to dismiss an information for facial insufficiency, the Court must view the allegations set forth in the information(s) and the supporting depositions in the light most favorable to the People. See People v. Huhn, 34 Misc 3d 1217[A], 2012 WL 265916, at *3 (Dist. Ct. Nassau County, 2012).

Here, the People allege that Defendant Tarrats committed Disorderly Conduct [PL §240.20(1)] in that "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he engages in fighting or in violent, tumultuous or threatening behavior." The accusatory, sworn to by Ithaca Police Department Officer Barry Banfield, states:

The defendant did stand in the middle of the roadway without a shirt flailinghis arms andshouting repeatedly in an unintelligible irate manner.

When Officer Banfield asked Defendant why he was shouting, Defendant answered, "It's what I do, Nigga." This incident was alleged to have occurred on June 26, 2013 at 6:38 p.m. on the 200 block of Elm Street in the City of Ithaca.

This Court can take judicial notice that the 200 block of Elm street is a mixed industrial and residential area. The east side of the 200 block has several single family type residences generously dispersed, while the western side is a mostly undeveloped, largely brush area with one industrial building to the northwest within a cul-de-sac surrounded by Chestnut Street. Additionally, the Court can take judicial note that the mean temperature for June 26, 2013 was a balmy 73 degrees and sunset was at 8:47 p.m. See, People v. Diaz, 22 Misc 3d 624, 628 (Crim. Ct. 2008).

The accusatory is silent on whether any member of the public was in a position to observe Defendant's conduct. The accusatory does not mention whether any people were peeping from their windows, were gathered in their yards, or were walking or driving by. Furthermore, the accusatory does not allege the duration of Defendant's unintelligible rantings. No threats or fighting words were ever made by Defendant. It is clear however, that there is no suggestion that Defendant continued his bizarre behavior once Officer Banfield arrived upon the scene. In fact, by every indication, it appears that Officer Banfield's arrival immediately diffused Defendant's mood, once he revealed, "It's what I do, Nigga." Most significantly, Defendant was alone, until the arrival of Officer Banfield. There is no allegation that Defendant Tarrats was intoxicated or under the influence of any other substance.

The parties have sent this Court on a rather joyous romp through the ever changing landscape of Disorderly Conduct law. The facts of this case appear to be controlled by two recent Court of Appeals cases, People v. Weaver, 16 NY3d 123 (2011) and People v. Baker, 20 NY3d 354 (2013). In Weaver, the Court of Appeals affirmed the defendant's convictions for two counts of disorderly conduct PL §240.20 (1) and (3). In Weaver, the defendant, nattily attired in his wedding suit, was loudly yelling and waving his arms at his new bride, who was seated on a curb still in her bridal gown and doused not in celebratory rice, but in her own post-nuptial tears. The argument occurred at 1:25 am in a parking lot outside of an operating hotel and directly across the street from an open [*3]mini-mart gas station. When the responding officer arrived at the scene, defendant Weaver walked across the street and entered the mini-mart. As the officer drove away, defendant Weaver exited the mini-mart and began yelling at his bride yet again. Defendant shouted a stream of obscenities, without a hint of tenderness. After observing this second argument the same officer pulled her vehicle near defendant and suggested that he calm down and that the couple needed to take their dispute somewhere else. Defendant responded by telling the officer to "shut the f-k up" because she "wasn't his mother" and she could not tell him what to do. The evidence presented was that Weaver's tone was loud and his demeanor was very aggressive and threatening. Defendant was also intoxicated. Weaver was warned that he needed to stop yelling and swearing or he would be arrested for disorderly conduct. The defendant again loudly used profanity and declared that "if you put your hands on me, bitch, you will be taking me to jail." A second backup officer arrived and gave defendant a third warning to settle down. Weaver refused to comply, instead continuing to hurl obscenities. When Defendant Weaver was advised that he was under arrest for disorderly conduct, he struggled, punched one officer in the face and injured the other officer's arm. Defendant Weaver was eventually arrested after a taser was used to subdue him. The Weaver Court stressed the fact that at the time of the incident, the hotel and mini-mart were both open for business, two employees were inside the mini-mart and at least one customer was using a gas pump during the commotion. In addition, two vehicles accessed a nearby ATM while the disturbance progressed. Id. at 126. The subsequent procedural history in regards to the bride and groom's honeymoon was unreported.

The Weaver Court explained that the factors in determining whether alleged disorderly conduct has public ramifications are the following:

I)the time and place of the episode under scrutiny;

ii)the nature and character of the conduct;

iii) the number of other people in the vicinity;

iv) the attention generated by a defendant's activities, or the lack thereof; and

v)any other relevant circumstances. Id. at 128Although there is "no per se requirement that members of the public must be involved or react to the incident *** the attention generated by a defendant's activities, or the lack thereof, is a relevant factor to be considered in the public dimension calculus." Id. Thus, a defendant may be guilty of disorderly conduct regardless of whether the action actually results in public inconvenience, annoyance or alarm if the conduct recklessly creates a risk of such public disruption.

The Weaver Court rejected the defendant's argument that the disturbance was of a private nature, finding that a person may be guilty of disorderly conduct when the "situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem." Id. In Weaver, the Court, in affirming defendant's convictions stressed that the commotion occurred during the early morning hours when peace and quiet would be expected, the incident began in a public parking lot adjacent to a hotel and extended into a public street near the hotel and mini-mart, both of which were open for business. And, although there was no testimony at trial from onlookers, there was evidence that a number of people were in the immediate vicinity, whether pumping gas, using the ATM or working at the mini-mart. The Court [*4]also agreed it could be reasonably inferred that guests were sleeping in the nearby hotel. Id. at 128-129.

Most recently, see, People v. Baker, 20 NY3d 354 (2013) (the Court found that there was insufficient proof of the public harm mens rea element necessary to provide probable cause for defendant's arrest for disorderly conduct. In Baker, the defendant approached the open passenger-side window of a police officer's patrol car, leaned his head in and inquired why the officer had checked the license plate of a vehicle parked nearby, backed away from the car towards the middle of the street, and swore at the officer. Although a group of bystanders gathered around, none were attracted or expressed any inclination, verbally or otherwise, to involve themselves in the dispute between the defendant and the officer. Defendant's outburst was extremely brief, lasting only about 15 seconds, and was not accompanied by menacing conduct, his statements were directed exclusively at the officer, who was trained to diffuse situations involving angry or emotionally distraught persons, and another police officer was present in a separate patrol car and able to provide assistance.)

Here, there is no suggestion that any onlooker was even in the vicinity of Defendant Tarrats. The incident occurred more than two hours before sunset on a lazy summer early evening in late June 2013. The 200 block of Elm Street is not a densely peopled area. There were no other people in the vicinity at the time of the incident. Defendant Tarrats was not arguing with anyone, except perhaps the demons intruding upon his frenzied internal dialogue. Further, Defendant was not making threats or uttering fighting words, but was in fact "unintelligible." There is no allegation that Defendant's conduct attracted any attention, and finally Defendant Tarrats storm was quelled by the calming appearance of Officer Barry Banfield. In this case, there is not a legally sufficient allegation of the public harm element required under the Disorderly Conduct statute.

The Disorderly Conduct charge against Defendant Ruben Tarrats is therefore legally insufficient and Defendant's motion to dismiss is Granted.

This constitutes the Decision and Judgment of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.

Dated:December 4, 2013

SCOTT A. MILLER

Ithaca City Court Judge