The People, Respondent,v.Trevis D. Baker, Appellant. (Appeal No. 2)

Brief

N.Y.January 8, 2013

Brief Completed: June 12, 2012 To Be Argued By: Geoffrey Kaeuper Time Requested: 10 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- TREVIS D. BAKER, Defendant-Appellant. BRIEF FOR RESPONDENT APPEAL NO. 1, Indictment No. 0409/06 APPEAL NO. 2, Indictment No. 0368/06 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Geoffrey Kaeuper Senior Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4674 Fax: (585) 753-4576 TABLE OF AUTHORITIES QUESTIONS PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS POINT I POINT II CONCLUSION TABLE OF CONTENTS The police had probable cause to arrest defendant for disorderly conduct. ii 1 2 3 8 A. Defendant used "abusive or obscene" language. 9 B. Defendant's actions had a sufficient public dimension for disorderly conduct. 12 If reversal were warranted in the drug case, that would not invalidate the assault conviction. 14 15 TABLE OF AUTHORITIES FEDERAL CASES Chaplinksy v New Hampshire, 315 US 568 (1942) o o o o o o o o 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10 Miller v California, 413 US 15 (1973) o o o 00 o o 00 o o 00 o o o 00 o o o o o 00 o o 0 0 0 0 0 0 0 00 0 0 0 0 00 0 0 10 STATE CASES People v Bakolas, 59 NY2d 51 (1983) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9 People v Couser, 94 NY2d 631 (2000) 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 11 People v Dietze, 75 NY2d 47 (1989) o o o o o o o o o 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10, 11 People v Fuggazzatto, 62 NY2d 862 (1984) o o 0 o o .. o o 0 00 0 00 0 0 0 0 0 0 0 00 0 00 0 0 0 0 0 00 0 0 0 00 14 People v Furet, 12 NY3d 740 (2009) o o o o 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 8 People v Lowrance, 41 NY2d 303 (1977) o o o o o o o o o o o o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 14 People v McDermott, 279 AD2d 361 (1st Dept 2001), lv denied96 NY2d 803 (2011) 0 0 0 0 0 0 0 6 People v Munafo, 50 NY2d 326 (1980) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9 People v Tichenor, 89 NY2d 769 (1997) o 00 0 0 0 00 0 0 00 0 0 0 00 0 0 0 0 0 00 0 0 0 0 0 0 0 0 0 0 0 0 0 9, 10, 11 People v Todaro, 26 NY2d 325 (1970) o o o o o 0 o o 0 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9, 11 People v Weaver, 16 NY3d 123 (2011) 9, 12 STATUTES CPL § 70.10 0 o o o o o 0 o o o o o o o o o o o o o o o o o o o o o o o o o o o o 0 o 0 0 o o o o o o 0 o o o o o o o o o o o o o o o o o o o 8 Penal Law § 120o05 o o 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2, 3 Penal Law§ 205.30 o o o o 0 o o o o 0 o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o 0 0 0 0 0 0 0 0 0 0 o o 0 0 0 0 0 0 0 3 Penal Law § 220o09 o o 0 o 0 0 o o o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 Penal Law § 220.16 o o o o o o o o o o o o o o o o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2, 3 Penal Law§ 240o20 o o o o o o o o o o o o o o 0 o 0 0 o o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3, 8, 9 Penal Law § 240026 o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o 0 o 0 o o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 ii 1. Question: QUESTIONS PRESENTED Did police have probable cause to arrest defendant for disorderly conduct when he inserted himself into a public dispute with a police officer and loudly told the officer "fuck you," "this is harassment," and "motherfucker," causing people to gather in the area? Answer of the Suppression Court: Yes. Answer of the Appellate Division: Yes. 2. Question: Would reversal of defendant's drug conviction require reversal also of his separate assault conviction when the plea bargain allowed appeal of the drug conviction but required that defendant waive appeal as to the assault conviction? Answer of the Appellate Division: Not addressed. 1 PRELIMINARY STATEMENT Defendant Trevis Baker was convicted, upon his guilty pleas entered on January 10, 2007, of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and assault in the second degree(§ 120.05 [3]) in Monroe County Court (Alex R. Renzi, J.) (Record [hereinafter "R"]10, 23). Defendant was sentenced on February 28, 2007, to an aggregate term of six years of incarceration with 5 years of post-release supervision (R 179). There has been no stay of the sentence. Defendant is currently on post-release supervision (http://nysdocslookup.docs.state.ny.us [DIN: 07-B-0770]) 2 STATEMENT OF FACTS On May 23, 2006, a Monroe County Grand Jury indicted defendant, in relation to events of May 11, 2006, on three counts of assault in the second degree (Penal Law§ 120.05 [3]), and one count each of resisting arrest(§ 205.30) and harassment in the second degree(§ 240.26 [1]). The indictment alleged that defendant caused physical injury to three police officers with intent to prevent them from performing a lawful duty, that defendant attempted to prevent officers from arresting him for unlicensed operation of a motor vehicle, and that he subjected an officer to physical contact. This indictment, number 0368/2006, is the subject of Appeal No. 2. Three days later, defendant had an encounter with police during which he was arrested for disorderly conduct. Once he was placed under arrest, a search of his person discovered 25 bags of crack cocaine. Based upon that incident, on June 9, 2006, a Monroe County Grand Jury indicted defendant for criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), criminal possession of a controlled substance in the fourth degree(§ 220.09 [1]), and disorderly conduct(§ 240.20 [3]). This indictment, number 0409/2006, is the subject of Appeal No.1. 3 Defendant moved for, inter alia, suppression of the crack cocaine on the ground that it was the fruit of the arrest for disorderly conduct and that police lacked probable cause for that arrest. The court granted defendant a hearing on that issue. The Suppression Hearing for Indictment 0409/2006 (Appeal No. 1) On Friday, May 26, 2006, at approximately 6:30P.M., Officer Michael Johnson was on patrol in the area of 163 Durham Street in the City of Rochester, I an area with "a lot of weapon calls, shots fired calls, a lot of open-air drug trafficking" (R 86-87). The house at 160 Durham Street was known to officers as a "stash" house, where they had made several drug-related arrests (R 89). In the course of investigating "open-air drug trafficking," Officer Johnson and another officer "had picked up two people" and Officer Johnson had one of these people in the back of his patrol car (R 89). At that point, he "noticed a female black came outside with a video camera towards [him]" (R 89-90). In the driveway of that house, there was a tan Cadillac, and Officer Johnson "ran the plate number," which came back to a Toyota Corolla (R 90-91 ). He asked the woman "whose vehicle it was" and she told him it belonged to her grandfather (R 91). When Officer Johnson returned to his car, defendant approached the passenger window and asked "why [the officer] was running the license plates to 4 the vehicle" (R 91). At the end of the conversation about the license plate, defendant "stood up and said 'fuck you,' and then he proceeded to walk backwards and said 'fuck you' again" (R 92). "He said, 'fuck you, you guys are just fucking me. Fuck you, you guys are just harassing me' in a loud voice" (R 93). People were already outside 163 Durham Street when defendant began speaking to Officer Johnson, and when defendant reached the center of the street and repeated his curses, several other people had begun gathering around the woman who was video-recording (R 94-95). "They were all gathering around her, the person who was doing the video-taping, and also around him once he reached that side of the street" (R 95). Approximately ten people were in the general area, "all congregated around 163 Durham Street right in front" (R 96). In this respect, Officer Johnson testified, the video recording did not fairly and accurately depict the entire incident on Durham Street because "the video was directed towards the north, and the crowd which was gathering was directly behind it and coming from the sides" (R 1 00). "Many other people" were on the street, but were not shown on the video because "[t]hey were coming from both sides" of 163 Durham after defendant made his statements and were congregating around the woman with the video camera (R 120-121). 5 Officer Johnson radioed to his partner that there would be an arrest, and then "walked up to [defendant] and asked him to turn around, place his hands behind his back" (R 97). He placed defendant under arrest for disorderly conduct (R 98). When he searched defendant incident to the arrest, he found 25 bags of . crack cocaine (R 98). Decision and Order on Suppression After arguments from the attorneys (R 122-133), the court made findings of fact orally (R 133-136). Thereafter, the court issued a written decision and order (R 8-9). The court found Officer Johnson's testimony was "credible and believable, and ... he was in a position to observe the events which constituted the subject matter of his testimony." Based upon that testimony and the video recording, the court determined that defendant used abusive or obscene language in public, that others were within earshot, and that defendant was not engaged in a private discussion with Office Johnson when he made the comments. Thus, there was probable cause to believe that "defendant, by his words, intended to cause public inconvenience, annoyance or alarm" (R 9, citing People v McDermott, 279 AD2d 361 [1st Dept 2001], lv denied96 NY2d 803 [2001]). The discovery of the cocaine, as a search incident to an arrest with probable cause, was lawful, and the court denied defendant's motion for suppression in its entirety. 6 Plea & Sentencin2 for both Indictments The court informed defendant that, if he pleaded guilty on Indictment 0409/2006 to criminal possession of a controlled substance in the third degree (Appeal No. 1), and on Indictment 0368/2006 to assault in the second degree (Appeal No. 2), the court would impose concurrent terms of six years, with three- and five-year periods of post-release supervision, respectively (R 154). Defendant would be required to waive his right to appeal from the assault conviction, but remained free to appeal from the controlled substance conviction (R 154). Defendant accepted that offer, entered guilty pleas to those charges, and executed a written waiver of appeal as to the assault conviction (R 29, 161, 163 ). The court thereafter sentenced defendant as promised (R 179). Appeal On appeal, the Appellate Division unanimously affirmed the judgment in Appeal No. I for the reasons stated by the suppression court. In Appeal No. 2, the Appellate Division affirmed without a memorandum. A Judge of this Court granted leave to appeal. 7 POINT I The police had probable cause to arrest defendant for disorderly conduct. The police had probable cause to arrest defendant for disorderly conduct when, during a public confrontation about a traffic ticket issued to defendant's girlfriend, who was video-recording the confrontation, defendant loudly said to Officer Johnson "fuck you," "this is harassment," and "motherfucker," drawing the attention of about ten people in the area. That encounter went beyond an exchange between individuals to become a potential public problem. The evidence as a whole made it "reasonably likely" that defendant used this abusive and obscene language in a public performance of sorts for the video camera of his already-outraged girlfriend and the neighborhood onlookers. As such, he hurled his abuse at Officer Johnson "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof' (CPL 70.10 [2]; Penal Law § 240.20). His an·est for disorderly conduct was lawful. The suppression court's probable cause determination presents a mixed question of fact and law, which this Court reviews only for record support (see People v Furet, 12 NY3d 740 [2009]). Because Officer Johnson's testimony and the partial video recording of the incident provide record support for the suppression court's determination, the judgment of conviction should be affirmed. 8 A. Defendant used "abusive or obscene" Ian~ua~e. A person commits 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" (Penal Law § 240.20 [3]). It appears that defendant does not now challenge the mens rea requirement, which involves the "public dimension calculus" (People v Weaver, 16 NY3d 123, 128 [2011]). Instead, defendant contends that he did not use abusive or obscene language because he did not utter "fighting words," a "true threat," or "obscenity," as those terms have been defined by the United States Supreme Court. But the constitutionality of the disorderly conduct statute is long-settled (see People v Bakolas, 59 NY2d 51 [1983]; People v Todaro, 26 NY2d 325 [1970]). Although "pure speech" can be punished only if it falls into a category that is unprotected by the First Amendment, the disorderly conduct statute does not regulate pure speech. "Rather, it is directed at words and utterances coupled with an intent to create a risk of public disorder, which the State has the authority and responsibility to prohibit, prevent and punish" (People v Tichenor, 89 NY2d 769, 775 [1997] [citations omitted]; see also People v Munafo, 50 NY2d 326, 331-332 [1980]). Accordingly, the validity of defendant's disorderly conduct arrest does 9 not depend on whether his words could themselves be proscribed as obscenities or threats. Defendant's insistence on "fighting words" and "true threats" involves the very attempt "to shift the analytical path" to People v Dietze (75 NY2d 47 [1989]) and Chaplinksy v New Hampshire (315 US 568 [1942]) and "away from the solid array of decisions directly on point with respect to disorderly conduct" that this Court rejected in Tichenor (89 NY2d at 774). The fighting-words and true-threats cases are not relevant to disorderly conduct because, whereas those cases raise "subjective speech concerns," the disorderly conduct statute "is different in purpose, language, scope and operation, Significantly, the disorderly conduct statute challenged here applies to words and conduct reinforced by a culpable mental state to create a public disturbance" (Tichenor, 89 NY2d at 775). The disorderly conduct statute "does not circumscribe pure speech directed at an individual" (id.). The same reasoning applies to obscenity. Because the disorderly conduct statute does not circumscribe pure speech, its constitutionality does not require that "obscene language" be defined by Miller v California ( 413 us 15 [1973]). Indeed, the decision in Dietze made clear that the phrase "abusive or obscene" is not limited in the way defendant contends. That identical phrase, used 10 in the former harassment statute, "simply does not even suggest a limitation to violence-provoking or substantial injury-inflicting utterances" (Dietze, 75 NY2d at 52-53). Because nothing in the statute reflects that some "special meaning was intended," the phrase is to be interpreted in its "ordinary sense" (id. at 51; see also People v Couser, 94 NY2d 631, 636-637 [2000]). In Dietze, the ordinary sense of the phrase rendered the statute unconstitutional as a restriction on pure speech, so this Court struck down that former harassment statute as overbroad. But the same problem does not arise with the disorderly conduct statute, which does not restrict pure speech (Tichenor, 89 NY2d 774-775). Applying the "ordinary sense" of the phrase "abusive or obscene language," there can be no doubt that defendant's words fall within the ambit of the statute. If neither "fuck you" nor "motherfucker" can be considered "abusive or obscene," it is difficult to imagine what can. In People v Todaro (26 NY2d 325 [1970]), this Court found the defendant used "clearly 'abusive and obscene language' "when he responded to a police officer's request to move by saying, "you can't tell us to f '-------· g move" (id. at 327 & 329). Defendant's words here were, if anything, more abusive and more obscene than the utterance that "clearly" satisfied the statute in Todaro. Officer Johnson, therefore, had probable cause to believe defendant's words conformed to the disorderly conduct statute. 11 B. Defendant's actions had a sufficient public dimension for disorderly conduct. If this Court determines that defendant is challenging the "public dimension calculus" of disorderly conduct on appeal, such a challenge is without merit. The record supports the suppression court's factual determination that Officer Johnson had reason to believe that defendant used his abusive and obscene language with intent to cause public inconvenience, annoyance or alarm (R 9). Defendant contended that he had a private exchange with Officer Johnson while there was no one else in the area (seeR 127-131). The suppression court properly rejected that argument, based upon Officer Johnson's testimony and the video recording. "In assessing whether an act carries public ramifications, relevant factors to consider are the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted; and any other relevant circumstances" (People v Weaver, 16 NY3d 123, 128 [2011]). Although "the attention generated" by the defendant's actions is a "relevant factor" for consideration, "a defendant may be guilty of disorderly conduct regardless of whether the action results in public inconvenience, annoyance or alarm if the conduct recklessly creates a risk of such public disruption" (Weaver, 16 NY3d at 128). 12 Here, the episode took place at about 6:30P.M. on a residential street known for weapons and open-air drug trafficking. Defendant inserted himself into the already-tense situation between Officer Johnson and defendant's girlfriend concerning running the license plate number of the Cadillac. With his girlfriend creating a public spectacle, defendant chose to inflame the situation by hurling abusive and obscene curses and accusations at Officer Johnson. The various people already in the area outside gathered around defendant's girlfriend and defendant's behavior attracted more people so that there were approximately ten people in the area at the time of defendant's arrest. Given all these circumstances, Officer Johnson had probable cause to believe that defendant had committed the violation of disorderly conduct. 13 POINT II If reversal were warranted in the drug case, that would not invalidate the assault conviction. Even if reversal were warranted for the drug case, that would not invalidate the assault conviction. Defendant's plea on the assault charge was not "induced by the understanding that the sentence would be concurrent with the sentence imposed" on the drug conviction (People v Fuggazzatto, 62 NY2d 862, 863 [1984]). Defendant had not already been convicted under one indictment and then chose to plead guilty under another with an understanding that he would receive a concurrent sentence not exceeding the first (see id.). Rather, defendant negotiated a plea for both indictments with the understanding that his plea to assault was final but that he could challenge his disorderly conduct arrest on appeal (R 154). Accordingly, defendant signed a waiver of appeal for the assault conviction which stated that his plea would "mark the end of this case" (R 29, 163). Under these circumstances, the record does not reflect that the voluntariness of the plea that defendant did not intend to challenge depended upon concurrent sentencing in the drug case that he did intend to appeal. Reversing the assault conviction would allow defendant to "renounce the understanding made at the time of plea" (People v Lowrance, 41 NY2d 303, 305 [1977]). 14 CONCLUSION The judgments of conviction should be affirmed for both Indictment 0409/2006 (Appeal No. 1) and Indictment 0368/2006 (Appeal No.2). Dated: June 12, 2012 15 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Assistant istrict Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 STATE OF NEW YORK* COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- TREVIS D. BAKER, Defendant-Appellant. PDF CERTIFICATION !,GEOFFREY KAUEPER., ESQ., certify that I am an attorney admitted to practice in the State of New York, that I compared the PDF brief and PDF record materials and they are identical to the filed original printed materials. DATED: June 12, 2012 GE0~6sr.r STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- TREVIS D. BAKER, Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Laurie Mastrocola , being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 13th day ofJune, 2012, deponent served three (3) copies of Brief for Respondent and one copy of CD upon Timothy Davis, Esq., Assistant Public Defender, attorney for appellant in this action at 10 North Fitzhugh Street, Rochester, New York 14614, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. Sworn to before me this 13th day of June, 2012. NO YPUBLIC o'buA A~"' fvb-a iA;oc~ LAURIE MASTROCOLA JEA.iH T./11ELLER ':ITARY PIJIII.IC, State o1 NY., Monroe ' Commission EXpires .rt: