People v Jackson

[*1] People v Jackson 2010 NY Slip Op 50320(U) [26 Misc 3d 1230(A)] Decided on January 27, 2010 Criminal Court Of The City Of New York, New York County Mennin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2010
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Wendell Jackson, Defendant.



2009NY080064



For the Defendant:

Lincoln Square Legal Services

(Justin Siebel and Calvin Fox, Legal Interns)

For the People:

Cyrus Vance, Jr., District Attorney, New York County

(Angel Marshall of Counsel)

Felicia A. Mennin, J.

The defendant, Wendell Jackson, is charged with two counts of Disorderly Conduct (PL §240.20[5] and [3]). He has moved for an order (1) dismissing the accusatory instrument pursuant to CPL 170.30(1)(a) and 170.35(1) for lack of facial sufficiency;(2) suppressing statements allegedly made by him involuntarily and obtained as the evidentiary fruits of the unlawful seizure of his person; (3) precluding the People's introduction at trial of any statement allegedly made by him of which they have not given timely notice; (4) compelling a bill of particulars and discovery, pursuant to CPL 200.90 and CPL 240.20, respectively; and (5) reserving for him the right to file additional motions. The People oppose the motions to dismiss and to suppress evidence. They have served and filed a Voluntary Disclosure Form ("VDF") containing a bill of particulars and certain discovery information and oppose any further discovery requests as beyond the scope of the discovery statutes.

FACIAL INSUFFICIENCY

The complaint makes the following factual allegations:

[Deponent] Police Officer Jacob Merino, shield No.04888 of the 28 Precinct[,] observed the defendant [on October 13, 2009 at 15:23 hours at 8 West 118th Street, New York County] obstructing pedestrian traffic, as follows: standing in the middle of the street. Defendant's conduct created a public disturbance/inconvenience in that it caused disruption of the normal flow of traffic.

Deponent furhter [sic] observed the defendant shouting obscene language to wit: [*2]WHAT THE FUCK ARE YOU GUYS DOING. YOU CAN'T DO NOTHING TO ME. I'M JUST HANGING OUT in a public area. Defendant's conduct created a public disturbance/inconvenience in that it caused people to express alarm.

It is axiomatic that facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution. People v Alejandro, 70 NY2d 133 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must meet with three requirements: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charges in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1) (a-c). This third requirement is what is referred to as a "prima facie" case. People v McDermott, 160 Misc 2d 769 (Dist Ct, Nassau County 1994). A prima facie case, also referred to as "legally sufficient evidence," means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See CPL 70.10[1]).

Obstructing Pedestrian Traffic Count

The defendant is charged with Disorderly Conductunder subsection five of PL §240.20, which provides in pertinent part that:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

5. He obstructs vehicular or pedestrian traffic;

The defendant argues that the facts alleged are insufficient to establish reasonable cause to believe that he obstructed vehicular or pedestrian traffic and acted either with the intent to cause public inconvenience, annoyance, or alarm or recklessly created such risk, both elements of this offense. There is merit to these contentions.

Although the accusatory instrument alleges that the defendant stood in the middle of West 118th Street, there are no facts alleged to support the deponent's conclusion that the defendant obstructed pedestrian traffic; nor are there any facts presented showing that the defendant obstructed vehicular traffic. There is no mention of whether cars or pedestrians had to stop, slow down or maneuver around the defendant because of how he had positioned himself. Similarly, there is no indication of whether the defendant was in the crosswalk or elsewhere in the street, if he was in the crosswalk, whether he was in that location when the traffic signal prohibited it, or how long he was at the particular location. The accusatory instrument merely alleges that the defendant's action "caused disruption of the normal traffic flow." Whether the alleged disruption of traffic flow was of pedestrians, vehicles or both, there needs to be some indication of what the officer means by "traffic flow."[FN1] In the absence of any facts showing that cars or pedestrians were in the [*3]area and that their passage through it was affected by the defendant's behavior, the traffic disruption element of this offense has not been established. See People v. Salazar, 13 Misc 3d 120,121 (App Term, 9th and 10th Jud Dists 2006).

The accusatory instrument also fails to give reasonable cause to believe that the defendant intended to cause "public inconvenience, annoyance or alarm" by standing in the middle of West 118th Street. See PL §240.20. A "breach of the peace" is the danger that the statute is aimed at preventing. As the court noted in People v. Tichenor, 89 NY2d 769 (1997), the statute in question "applies to words and conduct reinforced by a culpable mental state to create a public disturbance." Id at 775. The statute requires that the defendant act either with the intention to cause or that he recklessly create a risk of "public inconvenience, annoyance or alarm." PL 240.20. Without any other facts than those alleged, no such intent may reasonably be inferred.

It is true that the accusatory instrument alleges that the defendant's shouting "caused people to express alarm." However, the complaint does not indicate where the defendant was when he uttered the remarks alleged; or how his alleged remarks affected anyone, with regard to the pedestrian or vehicular traffic at the time. [FN2] It is not reasonable, under these particular circumstances, to infer an intent to cause or even that the defendant recklessly created a risk of such public inconvenience, annoyance or alarm, as required by the statute, by standing in the middle of the street and then protesting, albeit loudly, when he was moved along.[FN3] Accordingly, the defendant's motion for an order dismissing the first count of Disorderly Conduct (PL 240.20[5]) is hereby granted.

Abusive or Obscene Language or Obscene Gesture Count

§240.20 provides in pertinent part that:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: [*4]

(3) In a public place, he uses abusive or obscene language, or makes an obscene gesture;

The defendant contends that the accusatory instrument fails to give reasonable cause to believe that his alleged utterances demonstrated an intent to cause "public inconvenience, annoyance or alarm" or the create "a risk thereof." The Court agrees. In reaching this conclusion the Court has been mindful of the legislative intent behind the enactment of the Disorderly Conduct statute as

determined by the Court of Appeals:

The clear aim was to reserve the disorderly conduct statute for situations that carried beyond the concern of individual disputants to a point where they had 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, 331 (1980).

Notwithstanding the accusatory instrument's allegation that the defendant's utterances "caused people to express alarm," no specifics are included to support what is obviously a conclusion on the part of P.O. Merino. Indeed, there is no mention of whether any persons other than the deponent police officer, let alone a crowd, had gathered on this side street in response to the defendant's utterances and how any such alleged "people" had expressed their alarm. See People v. Richards, 22 Misc 3d 798, 807-08 (Crim Ct, NY County 2008). Nothing in the defendant's alleged utterances directly or indirectly suggest that his words were addressed to anyone other than P.O. Merino. Nor is it reasonable to infer from the proffered allegations that anyone other than the deponent police officer was seriously annoyed by those remarks, or if any others were annoyed, how such annoyance was manifested. See People v. Carcel, 3 NY2d 327, 332 (1957).All told, the accusatory instrument has failed to make out reasonable cause to believe that the defendant by his utterances intended or recklessly created a substantial risk of "a potential or immediate public problem . . . ." People v. Munafo, 50 NY2d at 331; People v. Evelyn Jackson, 18 Misc 3d 134(A)(App Term, 1st Dept), appeal denied 10 NY3d 841 (2008). Accordingly, the defendant's motion for an order dismissing the Disordering Conduct (PL §240.20[3]) count as facially insufficient is granted.

Because of the decision on the defendant's motions to dismiss, the Court has not addressed the defendant's other motions.

This opinion shall constitute the decision and order of this court.

Dated:January 27, 2010

New York, New York

_______________________

Hon. Felicia A. Mennin, JCC Footnotes

Footnote 1:The Court takes judicial notice of the fact that West 118th Street is between Fifth and Lenox Avenues, is a one way street, and runs through a residential block, not a major thoroughfare where heavy pedestrian or vehicular traffic reasonably could be inferred to have taken place.

Footnote 2:Indeed, the remarks alleged suggest that they were uttered only after the defendant was removed by the police officer from his original location. In any event, that allegation is found in a separate paragraph focusing exclusively on the defendant's verbal remarks and is obviously offered to support the second count in which the defendant is charged with another subsection of Disorderly Conduct, PL §240.20(3), which prohibits using abusive or obscene language in public.

Footnote 3:By contrast, in People v. Dominique Jackson, 18 Misc 3d 1102(A)(Crim Ct, NY County 2007)(unreported), the defendant was observed yelling and screaming as he and several others blocked several pedestrians from passing by along a public sidewalk, indicia of his unlawful intent to create a breach of the peace or his reckless disregard of the risk of the same. Similarly, in this Court's decision in People v Felix Robles, Docket No. 2008NY084959 (Crim Ct, NY County February 2,2009) the defendant was observed shouting obscenities, yelling and screaming on a subway platform at rush hour, causing people to avoid the area.