People v Richardson

[*1] People v Richardson 2010 NY Slip Op 52283(U) [30 Misc 3d 1204(A)] Decided on December 29, 2010 Criminal Court Of The City Of New York, New York County Boyar, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2010
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Julius Richardson, Defendant.



2010NY078618



The People were represented by Assistant District Attorney Victoria Meyer, Office of the District Attorney, New York County, Cyrus Vance, District Attorney, One Hogan Place, New York, New York 10013

The defendant was represented by Erin Darcy, Esq., The Legal Aid Society, 49 Thomas Street, New York, New York 10013

Diana M. Boyar, J.

An accusatory instrument was filed with the Court on October 24, 2010, charging defendant with one count each of Resisting Arrest (P.L. §205.30) and Disorderly Conduct (P.L. §240.20(3)). By motion dated December 1, 2010, defendant moves to dismiss the information on facial sufficiency grounds. Defendant argues the facts alleged do not support the disorderly conduct charge and since that charge serves as the basis for the resisting arrest charge, that count too must fail. The People oppose the motion.

The factual portion of the accusatory instrument, alleges on October 23, 2010, at approximately 8:58 p.m., at 1735 Madison Avenue, New York City:

Police Officer Luis Pena, shield No.26355 of the [sic] Housing PSA 5 observed the defendant shouting obscene language to wit :["]f**k off nigga, stop f**king with me", in a public area. Defendant's conduct created a public disturbance/inconvenience in that it caused a crowd to gather.

Deponent further states that when he was placing the defendant under arrest for the offense described above defendant tried to hit the deponent with his hand and starting [sic] kicking the deponent.

FACIAL SUFFICIENCY

When a defendant is charged in a misdemeanor complaint, unless he pleads guilty or waives prosecution by information, the misdemeanor complaint must be replaced, prior to trial, with an information meeting the requirements for facial sufficiency. C.P.L. §§170.65; 100.40 (1) (c); 100.15 (3); 170.35; People v. Alejandro, 70 NY2d 133 (1987). The information must, for jurisdictional [*2]purposes, contain non-hearsay factual allegations sufficient to establish a prima facie case. People v. Alejandro, 70 NY2d at 137. Furthermore, both informations and misdemeanor complaints must allege or be based upon "reasonable cause to believe" the defendant committed the offenses charged. People v. Dumas, 68 NY2d 729 (1986).

"Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

C.P.L. §70.10(2). A conclusory allegation a defendant committed each and every element of a crime, standing alone, does not meet the reasonable cause requirement. People v. Kalin, 12 NY3d 225, 229 (2009).

In reviewing an accusatory instrument for facial sufficiency, "[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 ...," the court should give it "a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000). Moreover, the Court of Appeals in People v. Allen, 92 NY2d 378, 385 (1998), held, at the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges. The prima facie case requirements at this stage are not the same as the burden of proof beyond a reasonable doubt at trial. People v. Henderson, 92 NY2d 677 (1999); People v. Meachem, 11 Misc 3d 126(A), 2005 Slip Op. 52269(U) (Crim. Ct. New York Co. 2005).

Defendant argues the information fails on several grounds: the disorderly conduct charge does not: (1) establish defendant created a public disturbance; (2) demonstrate defendant acted intentionally or recklessly; and, (3) allege the incident occurred in a public place. (Defendant's Application in support of his motion at ¶¶9-25). Defendant argues further that since the disorderly conduct charge is insufficient, the subsequent arrest was not authorized, therefore, the resisting arrest charge too, must fail. (Defendant's Application at ¶¶26-30). The People counter, arguing the facts, as alleged, are sufficient to support both charges.

A.Disorderly Conduct

To be guilty of disorderly conduct as charged herein, a person must, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: in a public place, he uses abusive or obscene language, or makes an obscene gesture." P.L. §240.20(3). Here, defendant allegedly yelled obscenities while at a New York City location, causing a crowd to gather. This Court finds these allegations, even viewed under the lower pleading standard, insufficient to support the charge of disorderly conduct.

Defendant correctly argues the limited facts provided in the information do not, among other things, support the mens rea element of the disorderly conduct statute. (Defendant's Application at ¶¶18-21). To sustain a disorderly conduct charge, the information must evidence reasonable cause to believe defendant acted with a conscious objective to cause a public inconvenience, annoyance or alarm or with a conscious disregard of a substantial and unjustifiable risk his conduct would cause such a result. P.L. §§15.05(1), (3) and 240.20. The statute, "applies to words and conduct reinforced by a culpable mental state to create a public disturbance." People v. Tichenor, 89 NY2d 769, 775 (1997). In making such an evaluation, the Court should consider: [*3]

(1) the extent to which defendant's conduct annoyed others; (2) whether defendant persisted in the conduct after warnings by others or the police; (3) whether defendant's conduct created at least the risk that disorder might result; and (4) whether defendant's conduct occurred in a public location.

People v. Maher, 137 Misc 2d 162, 168 (Crim. Ct. New York Co. 1987); People v. Spiegel, 181 Misc 2d 48 (Crim. Ct. New York Co. 1999).

While the facts herein conclusively allege a crowd was gathering, there is no allegation anyone - not even the deponent police officer - was annoyed or inconvenienced by defendant's actions. Defendant was not told to cease his behavior nor was he inciting a crowd. Moreover, the information is unclear whether defendant's angst was directed solely at the police officer, at another individual, or at passersby. Defendant cannot be guilty of disorderly conduct if he did not annoy anyone, disturb anyone or interfere with anyone. People v. Edmond, 17 Misc 3d 1130(A), 2007 NY Slip Op. 52212(U) (Sup. Ct. Queens Co. 2007) quoting People v. Perry, 265 NY. 362, 265 (1934). While the completed act of causing a public disturbance is not necessary to support the charge, there must be at least the risk of public inconvenience, annoyance or alarm (People v. Todaro, 26 NY2d 325 (1970)) which cannot be gleaned from the accusatory instrument in this case. Thus, the mens rea element of the charge is not sufficiently plead.

Furthermore,

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).

Here, the incident occurred at 9:58 p.m., in what appears to be a residential area. While the accusatory instrument alleges a crowd gathered, it does not indicate the number of those attracted nor the nature of the attraction - the people may have stopped out of curiosity rather than alarm. People v. Gonzalez-Muniz, 2001 NY Slip Op. 40182(U), *2 (Crim. Ct. New York Co. 2001) (" ... allegations provided in the accusatory instrument do not sufficiently convey the circumstances underlying the alleged commotion, and as such, are not sufficient to establish a real or potential public disorder."). Compare, People v. Malone, 28 Misc 3d 1227(A), 2010 NY Slip Op. 51510(U) (Crim. Ct. New York Co. 2010) (disorderly conduct charge sufficiently plead where defendant's conduct caused people to leave and avoid the scene which was a heavily populated area of Times Square); People v. Diaz, 22 Misc 3d 624 (Crim. Ct. New York Co. 2008) (disorderly conduct information alleged defendant's conduct resulted in a crowd gathering, disruption of the normal flow of traffic and people to express alarm).

This Court, however, disagrees with defendant in that the alleged incident occurred in a public place. "A public place' means a place to which the public or a substantial group of persons has access, and includes, but is not limited to, ...hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence." P.L. §240.00(1). The term is defined broadly in the statute, encompassing an area which "would be able to be seen by the casual passerby." People v. Santiago, 26 Misc 3d 1205(A) *2, 2009 NY Slip Op. 52670(U) (Crim. Ct. Queens Co. 2009). Here, the incident, as plead, occurred at a Manhattan location accessible to casual passersby.

Accordingly, the allegations in the information are insufficient to support the charge of [*4]disorderly conduct. Defendant's motion as to this count is granted.

B.Resisting Arrest

A resisting arrest charge can only survive if the arrest is authorized. "A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause." People v. Jensen, 86 NY2d 248, 253 (1995). As discussed above, the information does not support a disorderly conduct charge, hence, defendant's arrest, premised on that charge was not authorized.

However, the analysis does not end there.

An information charging resisting arrest need not actually charge the underlying offense, so long as the accusatory instrument contains nonhearsay allegations establishing that the arresting officer had probable cause to believe that some offense was committed.

People v. Square, 20 Misc 3d 1126(A) *3, 2008 NY Slip Op. 51632 (U) (Crim. Ct. New York Co. 2008); see also, People v. Thomas, 239 AD2d 246 (1st Dept. 1997). The information herein directly references the officer was arresting defendant for disorderly conduct when he resisted. Even so, the complaint fails to sufficiently allege facts substantiating any other crime for which defendant may have been arrested. Hence, the resisting arrest charge, as plead, must also fail.

DEFENDANT'S REMAINING MOTIONS

Since the accusatory instrument is dismissed in its entirety, the remainder of dfendant's motion need not be decided.

CONCLUSION

Defendant's motion to dismiss the information as facially insufficient is granted. To the extent the People have remaining speedy trial time, they are granted leave to file a new, facially sufficient instrument.

The foregoing constitutes the Decision and Order of the Court.

Dated:December, 2010

New York, New York

______________________________Diana M. Boyar

Justice of the Criminal Court