People v Vega

[*1] People v Vega 2016 NY Slip Op 51238(U) Decided on August 26, 2016 Justice Court Of The Town Of Webster, Monroe County DiSalvo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 26, 2016
Justice Court of the Town of Webster, Monroe County

The People of the State of New York

against

Jesus M. Vega, Jr., Defendant.



16060346



Shani Mitchell, Esq., Assistant District Attorney

Marybeth R. McCarthy, Esq., Attorney for the Defendant
Thomas J. DiSalvo, J.

The defendant was charged with disorderly conduct in violation of Penal Law § 240.20 (3), which states as follows: "A person is guilty of disorderly conduct when, 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.... " An information charging the defendant with said offense was filed by Deputy Foster of the

Monroe County Sheriff's Department. In that information it is alleged that on June 18, 2016 the "defendant did yell", presumably at the deputy, three specific obscenities "... and other obscene language in the AMC Theatre lot, multiple times causing a disturbance in front of young

children, and families." No supporting depositions were submitted with said information.There is no indication in the accusatory instrument as to the reason for the confrontation between the deputy and the defendant. Nor is there any indication as to the number of young children and families allegedly involved or their proximity to the defendant and the deputy. Nor was there any description as to what constituted the so-called disturbance. Defense counsel filed omnibus motions, wherein she demanded that the information be dismissed for being insufficient on its face pursuant to Criminal Procedure Law §§ 100.40 and 170. 35 (1) (a). Oral argument on said motions was conducted on August 17, 2016.

Legal Analysis.

Criminal Procedure Law § 100.40 (1) states as follows:

"An information, or a count thereof, is sufficient on its face when:(a) It substantially conforms to the requirements prescribed in section 100.15; and(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."

Thus other than the form of the information as set out in Criminal Procedure Law § 100.15, the first prong of a sufficiency evaluation is set out in Criminal Procedure Law § 100.40 (1) (a), which requires that the allegations of an information and any supporting depositions "... provide reasonable cause to believe that the defendant committed the offense charged ...."[FN1] In People v. Baker, 20 NY3d 354, 960 N.Y.S.3d 704 [2013] the Court of Appeals has determined what constitutes probable cause to arrest someone for an alleged violation of disorderly conduct in violation of Penal Law § 240.20 (3). In that case the defendant approached a police officer, who was sitting in his patrol car. The defendant was upset with the officer when he discovered that the officer ran the plates presumably on his parked car.[FN2] The court went on to describe the confrontation as follows:

"Defendant started backing away from the police vehicle towards the middle of the street, swearing at the officer. When Officer Johnson asked what did you say,' defendant repeated the profanity and accused Johnson of harassing him. After radioing his partner that he intended to make an arrest, Johnson exited his vehicle and, with the assistance of his partner, placed defendant under arrest. These activities apparently attracted the attention of various civilian bystanders and, by the time of the arrest, about 10 people had congregated on the sidewalk behind defendant and his girlfriend. In a search incident to arrest, the police discovered that defendant was in possession of 25 bags of crack cocaine. Defendant was subsequently indicted and charged with criminal possession of a controlled substance third degree, criminal possession of a controlled substance fourth degree and disorderly conduct."[FN3]

The trial court denied defense counsel's motion to suppress the results of the search based on the lack of probable cause to arrest the defendant for disorderly conduct.[FN4] The trial court's suppression ruling was affirmed by the Appellate Division.[FN5] However, the Court of Appeals reversed that decision, thereby granting the defendant's motion to suppress physical evidence and it dismissed the indictment.[FN6]

The same standard must be applied in determining if reasonable cause has been provided for in an information.

The crux of the court's ruling in Baker is based on how the confrontation in question affected individuals other than the officer and defendant. The court held that

" As is clear from the precedent, critical to a charge of disorderly conduct is a finding that defendant's disruptive statements and behavior were of a public rather than an individual dimension. This requirement stems from the mens rea component, which requires proof of an intent to threaten public safety, peace or order (or the reckless creation of such a risk). Thus, a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem' (People v Weaver, 16 NY3d 123, 128 [2011] [internal quotation marks and citation omitted])."[FN7]

In the instant case the information alleges that the confrontation between the defendant and the deputy took place in the parking lot of the AMC Theater, not in one of the individual movie theaters or even in the lobby. It does not allege that the young children and families fled the scene or gathered around the said two individuals. Nor is there any indication that any children or families could hear what was going on. There could be a number of people viewing the deputy and defendant from afar without any idea what was being said by the defendant. The Court of Appeals also stated that "The significance of the public harm element in disorderly conduct cases cannot be overstated. In virtually all of our prior decisions, the validity of disorderly conduct charges has turned on the presence or absence of adequate proof of public harm."[FN8]

In this case there is no evidence presented in the accusatory instrument that would suggest that the defendant intended for his abusive and obscene language to be directed to anyone

other than the deputy. Although an argument can be made that it is unclear as to who the objectionable evidence was directed, because the information signed by the deputy did not specifically indicate that said comments were directed to her. In any event, as previously stated, there is nothing in the information that would allow one to know where the "young children and families" were located. This would make it difficult to determine if there was in fact proof of any pubic disturbance. "[T]he risk of public disorder does not have to be realized but the circumstances must be such that defendant's intent to create such a threat (or reckless disregard thereof) can be readily inferred (id.; People v. Todaro, 26 NY2d 325, 329, 310 N.Y.S.2d 303, 258 N.E.2d 711 [1970] )."[FN9] Nevertheless, assuming arguendo that the abusive,

obscene, disrespectful and objectionable language alleged herein was directed to the deputy, such language would in and of itself not rise to the level of disorderly conduct. It is well established law that "... isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the public harm' mens rea necessary to support a disorderly conduct charge."[FN10]

Conclusion

The information herein fails to provide reasonable cause to believe that the defendant committed the offense charged as required by Criminal Procedure Law § 100.40 (1) (b). As a result, the information herein is insufficient on its face. Therefore, the charge of disorderly conduct in violation of Penal Law § 240.20 (3) is hereby dismissed.[FN11]

Dated: August 26, 2016

Webster, New York

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1:"The CPL uses the phrase reasonable cause' in lieu of the phrase probable cause' See e.g., CPL 70.10(2). However, it is well settled that [r]easonable cause means probable cause.' " Gerstenzang, Handling the DWI Case in New York [2015—2015 Ed.] § 1:29 at 42.

Footnote 2:Id. at 357, 705.

Footnote 3:Id. at 357, 706.

Footnote 4:Id. at 358, 706.

Footnote 5:Id.

Footnote 6:Id. at 364 710.

Footnote 7:Id. at 359-360, 707.

Footnote 8:Id. at 360,708.

Footnote 9:Id.

Footnote 10:Id. at 363, 710.

Footnote 11:Penal Law § 170.35 (1) (a).