People v Hanneman (Barbara)

People v Hanneman 2008 NY Slip Op 28174 [19 Misc 3d 73] Accepted for Miscellaneous Reports Publication AT1 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 25, 2008

[*1] The People of the State of New York, Respondent,
v
Barbara Hanneman, Appellant.

Supreme Court, Appellate Term, First Department, May 7, 2008

APPEARANCES OF COUNSEL

Legal Aid Society, New York City (Steven Banks and Frances Gallagher of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York City (Dana Poole of counsel), for respondent.

{**19 Misc 3d at 70} OPINION OF THE COURT

Per Curiam.

Judgment of conviction, rendered March 10, 2006, reversed, on the law, accusatory instrument dismissed, and fine and surcharge remitted.

The information charging defendant with disorderly conduct (see Penal Law § 240.20 [3]) was jurisdictionally defective, since it failed to allege "the essential element of either intent or recklessness" (People v Tarka, 75 NY2d 996, 997 [1990]). Contrary to the People's contention, defendant's requisite intent to cause public inconvenience, annoyance or alarm is not properly inferable from the single hand gesture attributed to defendant in the information or its unadorned allegations that defendant became "irate and loud" (see People v Letang, 14 Misc 3d 139[A], 2007 NY Slip Op 50318[U] [2007], lv denied 8 NY3d 987 [2007]; cf. People v Inserra, 4 NY3d 30 [2004]).

Moreover, a case of disorderly conduct under Penal Law § 240.20 (3) was not made out beyond a reasonable doubt at trial. The evidence, even when viewed in the light most favorable to the People, failed to establish that defendant intended to cause or recklessly created the risk of "a potential or immediate public problem" (People v Munafo, 50 NY2d 326, 331 [1980]) when she extended or "flip[ped]" her middle finger while initially walking past the complainant or in speaking loudly, but so far as shown neither abusively nor obscenely, during their subsequent verbal exchange.

McKeon, P.J., Davis and Schoenfeld, JJ., concur.