The People, Respondent,v.Todd Johnson, Appellant.BriefN.Y.February 13, 2014To be argued by FRANK GLASER (15 Minutes Requested) New York County Indictment Number 05822/2010 APL 2013-00034 CO Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - TODD JOHNSON, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov VINCENT RIVELLESE FRANK GLASER ASSISTANT DISTRICT ATTORNEYS Of Counsel JUNE 13, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 2 THE SUPPRESSION PROCEEDINGS .......................................................................... 3 Defendant’s Written Motion and the People’s Response ...................................... 3 The Evidence At The Suppression Hearing ............................................................ 4 The People’s Case ....................................................................................................... 4 The Defense Case ....................................................................................................... 8 Argument and the Court’s Decision. ...................................................................... 11 APPEAL TO THE FIRST DEPARTMENT .................................................................. 13 POINT ................................................................................................................................... 15 OFFICER MARTINEZ LAWFULLY ARRESTED DEFENDANT FOR DISORDERLY CONDUCT, CONTRARY TO DEFENDANT’S UNPRESERVED CLAIMS ......................................................................................................... 15 Defendant’s Public Harm Claim is Unpreserved and Unreviewable ................. 15 Probable Cause Is a Mixed Question of Law and Fact. ....................................... 20 Defendant’s Arrest was Lawful. .............................................................................. 22 CONCLUSION ................................................................................................................... 38 -ii- TABLE OF AUTHORITIES FEDERAL CASES Draper v. United States, 358 U.S. 307 (1959) ................................................................... 23 STATE CASES In re Shannon B., 70 N.Y.2d 458 (1987) ........................................................................... 35 People v. Baker, 20 N.Y.3d 354 (2013) ................................................ 16-18, 20-24, 26-29 People v. Berrios, 28 N.Y.2d 361 (1971) ........................................................................... 22 People v. Binion, 100 A.D.3d 1514 (4th Dept. 2012), lv. denied, 2013 N.Y.LEXIS 1238 (April 5, 2013) ...................................................... 19 People v. Brujan, 104 A.D.3d 481 (1st Dept. 2013) ................................................... 18-19 People v. Carrasquillo, 54 N.Y.2d 248 (1981) ................................................................... 23 People v. De Bour, 40 N.Y.2d 210 (1976) ................................................................... 34-35 People v. Galpern, 259 N.Y. 279 (1932) ...................................................................... 30-32 People v. Gray, 86 N.Y.2d 10 (1995) ................................................................................. 18 People v. Havelka, 45 N.Y.2d 636 (1978) ......................................................................... 19 People v. Johnson, 99 A.D.3d 472 (1st Dept. 2012) .................................................... 1, 14 People v. Jones, 9 N.Y.3d 259 (2007) ................................................................................ 28 People v. Kinchen, 60 N.Y.2d 772 (1983) ......................................................................... 19 People v. Letendre, 264 A.D.2d 943 (3d Dept. 1999), aff’d, 94 N.Y.2d 939 (2000) ........................................................................................... 23 People v. Maldonado, 86 N.Y.2d 631 (1995) .............................................................. 22, 28 People v. Martin, 50 N.Y.2d 1029 (1980) ..................................................................... 18-19 People v. McRay, 51 N.Y.2d 594 (1980) ........................................................................... 23 People v. Munafo, 50 N.Y.2d 326 (1980) .......................................................................... 28 -iii- People v. Oden, 36 N.Y.2d 382 (1975) ......................................................................... 20-21 People v. Pritchard, 27 N.Y.2d 246 (1970) ....................................................................... 28 People v. Shulman, 6 N.Y.3d 1 (2005) ............................................................................... 23 People v. Smith, 19 N.Y.2d 212 (1967) ............................................................................. 28 People v. Tichenor, 89 N.Y.2d 769 (1997) ........................................................................ 28 People v. Todaro, 26 N.Y. 2d 325 (1970) .................................................................... 32-34 People v. Tutt, 38 N.Y.2d 1011 (1976) .............................................................................. 19 People v. Vasquez, 66 N.Y.2d 968 (1985) ......................................................................... 18 People v. Weaver, 16 N.Y.3d 123 (2011) ........................................................ 18, 24, 27-29 People v. Whitehurst, 25 N.Y.2d 389 (1969) .................................................................... 22 People v. Whitmore, 12 A.D.3d 845 (3rd Dept. 2004) .................................................... 19 STATE STATUTES CPL 70.10 (2) ........................................................................................................................ 22 CPL 100.40(1)(b) .................................................................................................................. 28 CPL 100.40(1)(c) ................................................................................................................... 28 CPL 140(1)(a) ........................................................................................................................ 14 CPL 140.10(1)(a) ................................................................................................................... 22 CPL 470.05(2) ....................................................................................................................... 17 CPL 470.35(1) ....................................................................................................................... 18 New York City Charter ........................................................................................................ 34 Penal Law 15.00(4) ............................................................................................................... 37 Penal Law 120.05(3) ............................................................................................................. 35 Penal Law 195.05 .................................................................................................................. 35 -iv- Penal Law 205.30 .................................................................................................................. 35 Penal Law 220.16(1) ............................................................................................................... 1 Penal Law 240.20(3) ....................................................................................................... 26, 33 Penal Law 240.20(6) ............................................................. 14, 23-24, 26, 30, 32-33, 35-36 Penal Law 240.25 .................................................................................................................. 33 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TODD JOHNSON, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, Todd Johnson appeals from an October 9, 2012 decision and order of the Appellate Division, First Department (People v. Johnson, 99 A.D.3d 472 [1st Dept. 2012]) (A4-6),1 which affirmed a June 21, 2011 judgment of the Supreme Court, New York County (Patricia Nunez, J., at hearing; Charles H. Solomon, J., at plea and sentence). By that judgment, defendant was convicted by plea of third-degree criminal possession of a controlled substance (Penal Law 220.16[1]), and sentenced, as a second felony drug offender, to a determinate prison term of two years and a period of three years’ post release supervision. 1 “A” refers to defendant’s Appendix. “B” refers to defendant’s brief. -2- INTRODUCTION On the afternoon of October 29, 2010, in Harlem, defendant and three members of a violent street gang stood shoulder to shoulder in front of a deli, partially blocking its entrance. Several police officers arrived and ordered the men to disperse. Defendant and the others stayed where they were. The officers remonstrated with the men and repeatedly ordered them move on. The men responded in profane terms and did not move. Ultimately, officers frisked the men and arrested them for disorderly conduct. At the local precinct, an officer recovered, from defendant’s person, what was later determined to be 20 plastic “twists” of cocaine whose pure weight was at least 500 milligrams. By Indictment No. 5822/2010, filed December 1, 2010, a New York County grand jury charged defendant with third- and fifth-degree criminal possession of a controlled substance. Pursuant to defense motions to suppress the cocaine, and on April 20, 2011, the Honorable Patricia Nunez conducted a suppression hearing and, in an oral decision, denied suppression. On May 24, 2011, before the Honorable Charles H. Solomon, defendant pleaded guilty to third-degree criminal possession of a controlled substance, as a disposition of the entire indictment, in exchange for a sentencing promise of two years’ imprisonment and three years’ post release supervision. On June 21, 2011, defendant was sentenced as promised. -3- On appeal to the Appellate Division, First Department, defendant claimed that Justice Nunez had erroneously denied suppression. On October 9, 2012, the Appellate Division, in a decision and order detailed below, unanimously affirmed the judgment. THE SUPPRESSION PROCEEDINGS Defendant’s Written Motion and the People’s Response On February 7, 2011, the defense moved to suppress the evidence seized from defendant’s person (A10-11). In an affirmation in support of the motion, counsel alleged, inter alia, Defendant tells me that he was on the street, not engaged in any overt illegal activity, and in particular, not blocking pedestrian traffic or refusing any illegal (sic) order from the police, when he was seized by the police, who then allegedly took a quantity of a controlled substance from him without his permission. Defendant denies having committed any illegal or suspicious act which could have given police the authority to stop him search him or interfere in any way with his liberty. (A13-14). In response, on February 21, 2011, the prosecutor submitted an affirmation alleging, in pertinent part, On October 29, 2010, at about 15:00 hours at 2400 7th Ave., N.Y., N.Y., Police Officer Christian Martinez, shield #10068 of the 032 Precinct, observed the defendant and others standing in a group obstructing pedestrian traffic. P.O. Martinez told the defendant and others to disperse from the location and stop blocking the sidewalks and the -4- defendant and others refused to comply. Defendant’s conduct created a public disturbance/inconvenience in that it caused disruption of the normal flow of pedestrian traffic. In a search incident to a lawful arrest, P.O. Martinez recovered crack/cocaine from the defendant’s front right shorts pocket. The People submit that such evidence was lawfully obtained and deny all allegations to the contrary. (A23). On March 15, 2011, the Honorable Charles H. Solomon ordered a hearing to resolve the motion, and on April 20, 2011, the Honorable Patricia Nunez presided over that hearing. The Evidence At The Suppression Hearing The People’s Case The People’s sole witness at the hearing was Police Officer CHRISTIAN MARTINEZ, who had been employed by the NYPD for four years (A30). Upon graduation from the Police Academy, Martinez was assigned to the 32nd Precinct, where he was given a series of patrol assignments (A30-31). For the first six months, he walked a beat and got to know the neighborhood, including “certain problem areas” in the precinct (A31). Next, Martinez worked the midnight tour in a patrol car; this assignment required him to respond “to any kind of job” (A31). Martinez worked midnight shifts until August 2010, when he was assigned to the “conditions unit” (A31). He had participated in over 200 arrests (A47). West 140th Street, between Eighth and Seventh Avenues, was in the 32nd Precinct and was “occupied” by the “40 Wolves,” a street gang that “terrorize[d] the -5- neighborhood” with robberies and shootings (A31-32, A52).2 Martinez was familiar with the 40 Wolves from “walking a beat,” arresting “a lot” of the gang’s members, and “foot pursuits;” also, he was familiar with police “intel,” including photographs posted inside the 32nd Precinct stationhouse that “separated who’s who in what gang” (A32). Members of the 40 Wolves “only hang out with each other on the block, no outsiders,” Martinez stated (A38-39, A53-55). On over 10 occasions prior to the incident in this case, Martinez had seen defendant “hanging out” with the gang’s members (A36-39, A52-55). On Friday, October 29, 2010, at about 3:00 p.m., Martinez and Officer Basnight were on duty in a police van near the corner of Eighth Avenue and 140th Street (A33). The officers received a radio run stating, “multiple stopped in front of 2400 Seventh Avenue” (A33), which was a deli located at the corner of Seventh Avenue and 140th Street, in 40 Wolves territory. There had been community complaints about “gang activity involving fights, shootings and drug dealing” at the street corner where the deli was located (A63-64). Martinez and Basnight drove to that corner (A33-35). When they arrived, they joined four to six other officers in an encounter with defendant, Henry Rosario, Russell Jordan and Burns, whose first name Martinez did not specify (A36-41, A48). Martinez knew that Rosario, Jordan 2 The moniker “40 wolves” refers 140th Street (A54). -6- and Burns were members of the gang (A36-37). Asked for the source of this knowledge, Martinez replied: From past dealings we (sic) them. I have arrested the two of (sic) the individuals before and Henry Rosario is a frequent visitor of the 32nd Precinct. They are known to the 32nd Precinct. Their pictures are up. They are known gang members, and I have dealt with them from day one being assigned to the 32nd Precinct (A38). Martinez recognized some of the officers (A35). Defendant and his cohorts stood “side by side” with their backs to the deli, within “inches,” or “feet,” of its entrance (A36-41, A48, A58-62). Rosario was “partially blocking” the entrance with “his body” (A55-62). Jordan or Burns was right next to Rosario, to his left; defendant was in the third position, “two bodies down” in relation to Rosario (A40). At the hearing, exactly where the men were standing in relation to the deli’s entrance, and whether they blocked others from going inside, was hotly contested. On direct examination, Martinez repeatedly stated or acknowledged that he saw defendant and three other men “in front” of the deli (A35, A37, A39, A41). On cross-examination, counsel asked, “You don’t know of your own knowledge or what the police officer told you, any police officer told you, whether or not these individuals actually were blocking the doorway so pedestrians couldn’t walk by? You don’t know that, do you?” (A51). Martinez replied, “No” (A51). On redirect, the prosecutor asked, “When you yourself saw the four individuals, from what you saw, -7- were they blocking people from going into the store?” (A60). Martinez replied, “Henry Rosario was near the entrance, yes” (A60). When the prosecutor asked whether the “group as a whole were blocking people from going into the store?” (A60), Martinez said, “From where they were standing Henry Rosario, yes” (A60). Shortly thereafter, the following occurred, THE COURT: You said Henry Rosario was near the entrance? THE WITNESS: He was partially blocking it when I got there. THE COURT: So he was in front of the entrance? THE WITNESS: Yes, not completely blocking the whole entrance, but his body was blocking the entrance. He was partially blocking. THE COURT: Partially? THE WITNESS: Yes, ma’am. (A60-61). Martinez heard one of the officers who had arrived before him and Basnight repeatedly tell defendant and the other men, “why is it so hard to get off the corner; why don’t you listen when we tell you to get off the corner” (A39). Another officer repeatedly said, “you know, you guys never listen; I tell you guys to get off the corner; you never want to move” (A39). “At the same time,” Martinez testified, defendant’s cohorts “are talking back and saying but we live here; this is our hood; this is our block; we are not doing anything” (A39-42). Officer Derenze, who was at the scene -8- when Martinez arrived, told Martinez that, prior to Martinez’s arrival, the men had been “standing in the same spot” and “we” told them to move “numerous” times (A43-44, A50-51). Next, Martinez stated to defendant and his cohorts, “you know, what’s so hard about understanding when we tell you to clear the corner,” and “what’s so hard about following police instructions,” to which Rosario replied, “we are not doing shit, you know, this is our block; we are not doing anything” (A41). The men did not move. Martinez arrested defendant and his cohorts for disorderly conduct (A41, A55). The arrestees were frisked, taken to the stationhouse, and searched, whereupon 20 plastic “twists” of crack were recovered from defendant’s pocket (A44-47). The Defense Case Defendant TODD JOHNSON was the sole defense witness. For the past 18 years, he had lived at 2400 Seventh Avenue, in an apartment building adjacent to the deli (A66-67). His friends Russell and Rosario were members of the 40 Wolves; defendant did not belong to the gang (A82-83). On April 18, 2007, defendant had been convicted of fifth degree criminal possession of a controlled substance. He had also previously been convicted of misdemeanor possession (A92-93). On October 29, 2010, defendant left his apartment at around 2:30 p.m. (A68). He saw Russell and Rosario, sat on a bench near the entrance to his building, and talked with them for four or five minutes before noticing a jeep come “rolling downtown” from 141st Street (A68-70). A person in the jeep’s back seat, who -9- defendant believed was a police officer, was photographing defendant and his friends (A70-71). Next, defendant, Russell and Rosario walked toward the deli at the corner of Seventh Avenue and 140th Street (A71). Defendant acknowledged that he knew the deli “pretty well” (A79). He entered the deli “more than 20 times a day” (A79). Other pedestrian “traffic” came in and out of the deli with frequency that depended on “what day of the week” it was (A79). On the day of the incident, “it wasn’t busy and it was a Friday and it still wasn’t busy” (A79). Standing in front of the deli, to the left of the entrance but not blocking it, the three men began talking with another man (A72). A blue Chevrolet Impala that defendant recognized as an unmarked police car pulled to the curb directly in front of the four men (A69-73). The officers in the car silently watched defendant and his three cohorts (A72). Defendant went into the deli (A72-73). The other three men walked towards Eighth Avenue (A73). 30 seconds later, defendant exited the deli, having “bought a cigarette” and a snack (A72-74). When defendant left the store, “David” and defendant’s three previously noted cohorts walked by him and stopped in front of the deli, without blocking its door (A74-75, A96). Defendant was four to seven feet from his cohorts -- now, four of them -- and the deli. He said something, and his cohorts laughed (A74-75, A93-95). Next, “the blue Impala came speeding up the block from Eighth Avenue” and again stopped at the corner of Seventh Avenue and 140th Street (A72, A75). Three -10- plainclothes officers exited the car, “screaming and cursing” at defendant and his cohorts (A72, A75-76, A95). Defendant attempted to walk away. (A95). As he was leaving, defendant heard police officers saying “I fucking told you to get off the fucking corner” and “everyday y’all on this fucking corner” (A76, A100-101). An officer other than Martinez ordered defendant to come back and stand to the left of the deli’s door (A76-78, A96). Defendant stated, “what’s going on; I’m a grown man; I live here; I’m going home” (A77). An officer told defendant to “stand right here and shut up” (A77). The officer put out defendant’s cigarette and threw away his snack (A77). Defendant stood to the left of the deli; three of his four cohorts were lined up on the right side of the doorway (A77-78). When additional officers arrived, the men were positioned so that they stood “in a row” (A78). Martinez had not yet arrived (A78). Defendant and the other detainees were then patted down and arrested. (A78). Throughout the incident, defendant did not see anyone come in or out of the deli (A78-79). Defendant did not block the deli’s door or “any traffic” (A79-80). The police never told defendant to disperse (A99). Asked whether “some” of Martinez’s testimony was true, defendant replied, “No” (A98-99). During the evening following his arrest, defendant tried to curry favor with the police and prosecutor by offering them information about a shooting involving Russell. This information was a “complete lie” (A87-91). -11- Argument and the Court’s Decision. Defense counsel argued, among other things, that Martinez never saw defendant block pedestrian traffic or refuse a lawful order to disperse (A102-103). He asserted, An officer can only arrest a defendant for a violation unless he sees the violation. He did not see it. All he saw was other officers there. The defendants were standing there in a line and the officers were around them, and then he said he arrested him for disorderly conduct. He did not see the disorderly conduct. He had no right to arrest him. Anything recovered has to be suppressed (A103-104 [emphasis added]). Counsel stated, [T]he officer must see a violation under the CPL to arrest him for a violation. He never saw that. The police officer saw him standing there. That’s all he saw. On the basis of all that, they failed to meet their burden (A106-107 [emphasis added]). Additionally, counsel said, Even if he was a member of the gang we may not like that but there has to be probable cause to arrest him; and to just say you can’t stay here because we are telling you to leave, it has to be a lawful order. It’s not a lawful order (A112). Following the People’s argument, and a defense reply, Justice Nunez issued an oral decision. The judge found Martinez credible, and expressly “adopt[ed] his testimony” (A114). She found that in the 32nd Precinct, the 40 Wolves were known for violent activity and drug dealing (A114-115). The gang’s “locat[ion]” encompassed the corner where the deli was located and the surrounding -12- neighborhood (A114). Gang members associated only with each other; they did not “hang out” with people who were not in the gang (A115). On ten prior occasions, Martinez had seen defendant “in the company of known gang members (A114-115). On the date in question, a Friday, at 3:00 o’clock in the afternoon, Martinez arrived at the deli pursuant to a radio run, and saw four to six officers who he recognized speaking to four men standing in front of the store (A115-116). Martinez knew that three of the four men were gang members because he had previously arrested them (A114). The men “had their back to the store facing the police” (A115). Rosario was “partially blocking” the deli’s entrance “with his body” (A115). The other three men “were to [Rosario’s] immediate left standing in very close proximity all side by side” (A116). At least two of the officers who had preceded Martinez were “speaking with the four individuals saying to them why are you refusing to move; why is it so hard to get off the corner; why don’t you listen when we tell you to move” (A116). At least one of the four men responded, “we live here; this is our hood; this is our block; we are not doing anything“ (A116). Martinez “approached and began to repeat the same things that he heard the other police officers saying: what’s so hard about moving when we tell you to” (A116). Rosario “replied again we are not doing anything; this is our block” (A116). Officer Derenze told Martinez that the men had already been told to move (A116). Next, Martinez arrested the four men (A116). The court concluded, -13- [T]here was probable cause for the arrest of the defendant since there was testimony that at least one member of the group was partially blocking the entrance and the others were all standing side by side with him thereby being part of a group that was partially blocking the entrance to a deli that was open for business on a Friday afternoon, and they disobeyed what I conclude from the testimony to be a lawful order to disperse from the officers... [T]he order was for them to disperse from front in front (sic) of a store where a group was partially blocking the entrance thereby, any pedestrian traffic that would have occurred would have been blocked from going into the store. So, there was, a lawful arrest, and the property that was recovered was recovered from the defendant pursuant to a lawful arrest. (A117-118). At counsel’s request, Justice Nunez elaborated, [T]he officers are standing there telling them why is it so hard to get off corner, why don’t you listen when we tell you to move, and the arresting officer repeated that what’s so hard about moving when we tell you to move in (sic). I’m saying that was a lawful order to disperse (A118-119). APPEAL TO THE FIRST DEPARTMENT In his Appellate Division brief, defendant asserted, inter alia, that “an order to disperse would not have been lawful” because there was no evidence that defendant “actually breached the peace or created a substantial risk of breaching the peace” (Defendant’s Appellate Division brief: 13). He also argued that Martinez lacked probable cause because he could not have known whether defendant had the culpable mental state required for disorderly conduct (id.: 20). Additionally, defendant -14- contended that Martinez lacked “reasonable cause to believe” that defendant committed disorderly conduct in Martinez’s presence (id.: 17-18). The People responded, inter alia, that defendant’s claims were unpreserved and lacked merit (People’s Appellate Division brief: 11-21). Following oral argument, in an October 9, 2012 decision and order, the Appellate Division unanimously affirmed the judgment. People v. Johnson, 99 A.D.3d at 472 (A4-6). The appellate court stated, The arresting officer heard another officer make a statement indicating that defendant and three other men had been told “to get off the corner” where they were congregating in front of a local store. The officer himself made a statement indicating that the men should leave the corner. None of the men, including defendant, left and the officer arrested all four of the men for disorderly conduct. (A4-5). The Appellate Division concluded that Martinez had probable cause to arrest defendant for disorderly conduct under Penal Law 240.20(6), which provides, [a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: . . . He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse (A5). The court held that the arrest complied with CPL 140(1)(a), which provides that a police officer who arrests a person for an offense must have “probable cause to believe that such person has committed an offense in [the officer’s] presence” (A4). The Appellate Division further said, -15- Given the information the officer had about the gang problems that had occurred at that location in the past and the gang background of several of the men, he had a reasonable basis to believe their presence could cause public inconvenience, annoyance or alarm. Defendant’s failure to obey the police officer’s direction provided probable cause to arrest him (A5 [citations omitted]). In this Court, defendant contends that there was no probable cause for his arrest. He maintains that the cocaine recovered from his person should have been suppressed and the indictment dismissed. POINT OFFICER MARTINEZ LAWFULLY ARRESTED DEFENDANT FOR DISORDERLY CONDUCT, CONTRARY TO DEFENDANT’S UNPRESERVED CLAIMS (Answering defendant’s brief). Defendant claims there was “no support” in the record for the rulings below that there was probable cause to arrest him for disorderly conduct (B5). The specific arguments he raises here, however, bear little resemblance to those he made in Supreme Court. In particular, defendant’s claim that the People failed to show that defendant’s conduct would result in public harm is unpreserved and unreviewable. And, none of defendant’s claims has merit. Defendant’s Public Harm Claim is Unpreserved and Unreviewable At the hearing, counsel repeatedly argued that the arrest was unlawful because Officer Martinez did not see defendant actually commit disorderly conduct in the officer’s presence. Counsel asserted, for example, -16- [Martinez] did not see whether or not the defendants prior to the other officers getting to the scene were blocking pedestrian traffic and refusing a lawful order to disperse... He did not witness the defendant committing disorderly conduct and he arrested him. He arrested the defendant. An officer can only arrest a defendant for a violation unless he sees the violation. He did not see it (A103 [emphasis added]). Counsel similarly contended, the People failed in their burden to show that this defendant committed disorderly conduct in the presence of the officer. The officer never saw that and the officer must see a violation under the CPL to arrest him for a violation. He never saw that (A106 [emphasis added]). Counsel further asserted that there had been “no testimony” -- only “speculation” -- that defendant and his cohorts “were told to leave and wouldn’t leave (A110). Martinez “didn’t see any of this and he didn’t see defendant commit disorderly conduct,” counsel stated (A110, A112). Counsel also argued that the judge should credit defendant’s testimony and grant the motion to suppress on that basis (A104-106). He asserted that simply being a gang member is not an offense (A110-111). “There was not one scintilla of evidence that pedestrian traffic was being blocked,” counsel said (A113). However, counsel did not assert, as did defense counsel in People v. Baker, 20 N.Y.3d 354, 358 (2013), that “the police lacked probable cause for the disorderly conduct arrest because defendant’s statements were not uttered with the intent to annoy, harass or alarm, the culpable mental state under the disorderly conduct -17- statute.” People v. Baker, 20 N.Y.3d at 358 (citation omitted). Nor did counsel maintain, as defendant does now, that the evidence failed to support the inference that defendant possessed the requisite culpable mental state (see B12, B17-18).3 To be sure, the affirmation submitted in support of the written motion to suppress alleged that defendant was not in fact “blocking pedestrian traffic” (A13-14); and, counsel reiterated this assertion at the suppression hearing (A113). But that is a far cry from arguing, as defendant does now, that there was a deficiency in the record due to a failure to establish reason for the police to believe that defendant and his accomplices intended or were reckless as to public harm. Moreover, defendant below never asserted the record was deficient due to a lack of evidence of, e.g., the tone of voice used by the men in front of the bodega, “any sort of menacing” or “unusual behavior” on their part, “that any onlookers saw, or were attracted to” what they were doing, or that no “member of the public was in the vicinity at the time” (B17-18). Defendant’s public harm argument is therefore unpreserved as a question of law. See CPL 470.05(2). Thus, it is beyond the scope of this Court’s review power. See 3 Contrary to defendant’s argument (B23-24), the hearing court did not arbitrarily “cut off oral argument” or improvidently deny counsel an opportunity to submit written argument. Notably, the court heard argument from counsel before the close of the evidence (A57, A63, A82-87). After the close of the evidence, counsel argued in support of the suppression motion (A102-107). Once the prosecutor had responded to counsel’s argument, the court permitted counsel to reply (A102-107, A110-114). The judge even allowed counsel to argue and ask questions while the judge stated her decision (A118-119). Further, counsel’s request to submit written argument was untimely since it came only after the court stated, in her decision, that the arrest was supported by probable cause (A117). Notably, too, nothing barred defendant from moving to reargue, an option he chose not to pursue. -18- CPL 470.35(1); People v. Vasquez, 66 N.Y.2d 968, 970 (1985) (suppression claim unpreserved where defendant did not “specifically plac[e] it for disposition before” the motion court [emphasis added]). The lack of preservation here is no mere technicality. In this case, reviewing the noted claim would be antithetical to a key principle whose efficacy is dependent on the preservation rule. A specific, timely objection to purportedly insufficient proof, whether at a hearing or trial, helps bring about an outcome that is based on actual facts, as opposed to courtroom gamesmanship. It does so by alerting the court to alleged deficiencies while “the opportunity for cure” is still present. See People v. Gray, 86 N.Y.2d 10, 20-21 (1995) (“A sufficiently specific motion [for a trial order of dismissal] might provide the opportunity for cure before a verdict is reached and a cure is no longer possible.”); People v. Martin, 50 N.Y.2d 1029, 1031 (1980) (defendant must timely raise his arguments in order to avoid reversible error or make cure possible). Here, had defendant raised his public harm argument in the suppression court, before the court’s decision, the People could have requested to recall their witness in order to educe evidence that defendant now claims is lacking, such as the number of people nearby, whether any of them were affected by the incident and, if so, the number of those people and how they reacted (B12, citing People v. Baker, 20 N.Y.3d at 360; People v. Weaver, 16 N.Y.3d 123, 128 [2011]). The judge would have had the discretion to grant such a request. See People v. Brujan, 104 A.D.3d 481 (1st Dept. -19- 2013); People v. Binion, 100 A.D.3d 1514, 1516 (4th Dept. 2012), lv. denied, 2013 N.Y.LEXIS 1238 (April 5, 2013); People v. Whitmore, 12 A.D.3d 845 (3rd Dept. 2004).4 Instead, by refraining from drawing the suppression court’s attention to the alleged deficiency, defendant effectively deprived the People of the “one full opportunity to present evidence of the dispositive issues involved at the suppression hearing,” to which they were entitled. See People v. Havelka, 45 N.Y.2d 636, 643 (1978); People v. Tutt, 38 N.Y.2d 1011, 1012-1013 (1976) (claim not advanced below unpreserved where appellate review would deprive People of “evidentiary opportunity” to refute it). For similar reasons, defendant’s public harm claim is unreviewable. As noted, since defendant did not raise the claim below, the People did not present pertinent proof on the question. As a consequence, the record is inadequate to permit the Court to make an intelligent determination on the merits. See People v. Martin, 50 N.Y.2d at 1031. The claim is thus unreviewable. See People v. Kinchen, 60 N.Y.2d 772, 774 (1983) (automatically preserved claim not reviewable in absence of adequately developed record). 4 The rule generally proscribing the reopening of a suppression hearing to receive additional prosecution evidence does not apply when the court has not yet decided the motion. See Brujan, supra; Binion, supra; Whitmore, supra. -20- Probable Cause Is a Mixed Question of Law and Fact. Ordinarily, whether there was probable cause for an arrest presents a mixed question of law and fact whose review is closely circumscribed in this Court. People v. Baker, 20 N.Y.3d at 359 n.1 (citation omitted). A mixed question is beyond this Court’s further review “if supported by any evidence in the record.” Id. (emphasis added). Notably, in People v. Baker, the Court reviewed probable cause as a question of law. 20 N.Y.3d at 359 n.1. But Baker was not a typical case because “[t]he facts giving rise to [Baker’s] disorderly conduct arrest [were] undisputed.” People v. Baker, 20 N.Y.3d at 357. Indeed, the police testimony at the Baker suppression hearing was “uncontradicted.” People v. Baker, 20 N.Y.3d at 358. Undisputed facts and uncontradicted police testimony “distill[ed]” probable cause to a purely legal question in Baker. People v. Baker, 20 N.Y.3d at 359 n.1. See also People v. Oden, 36 N.Y.2d 382, 384 (1975) (question of law presented where facts undisputed, only one inference can reasonably be drawn, and credibility is not an issue). Here, by contrast, defendant has always disputed the facts and Officer Martinez’s credibility. Defendant’s suppression hearing testimony diverged from Martinez’s account in key respects. He asserted, for example, that prior to Martinez’s arrival, other officers had ordered him and his cohorts to stand in a “row” to the left of the deli door (A77-78). He refused to acknowledge that any of Martinez’s -21- testimony was true (A98-99). And counsel urged the hearing court to credit defendant’s testimony (A107). However, the suppression court credited and “adopted” Martinez’s testimony (A114). Furthermore, the facts forming the basis of the First Department’s ruling conformed precisely with Martinez’s testimony -- an implicit affirmance of the hearing court’s findings. Yet, defendant directly challenges those findings now. He refers to Martinez’s account as “alleged,” “supposed,” “purported,” or only conditionally true (B2-3, B19-21). For example, Martinez testified that the 40 Wolves gang “occupied” the deli’s vicinity and “terrorize[d] the neighborhood with robberies and shootings” (A31-32, A52). But defendant asserts that Martinez’s account of the violent street gang was “purely historical” information (B4), merely “history” (B2, B20-21), reflected the “past” (B3), and described only “previous[ ]” events (B7).5 Further, defendant denigrates Martinez’s testimony as “equivocal” (B9, B18 n.6) and “amorphous” (B22 n.7). Since the facts and Martinez’s credibility remain in dispute, probable cause does not distil to a purely legal question in this Court, as it did in People v. Baker. See 20 N.Y.3d at 359 n.1. Rather, the issue is a mixed question of law and fact. See People v. Oden, 36 N.Y.2d at 384. Thus, the Court’s review should 5 While defendant disparages the relevance of the 40 Wolves evidence now, he did not, at the suppression hearing, lodge a specific objection to Martinez’s direct testimony regarding the gang (A31-32, A36-39). He raised a single, one-word objection (A38). On cross examination, the defense explored the subject in detail (A52-55). Not until redirect did defendant specifically object questions about the gang (A63-64). Of course, by then, the subject had already been vetted by both sides. -22- be limited to determining whether there is any evidence in the record to support Appellate Division’s affirmance. See People v. Baker, 20 N.Y.3d at 359 n.1. Defendant’s Arrest was Lawful. Defendant contends there was no proof that he had the mens rea required by the disorderly conduct statute (B5, B12-18), or that “any order directing [him] to disperse” was “lawful” within the meaning of statute (B5, B19-20). Further, defendant asserts that the First Department misinterpreted the disorderly conduct statute so as to render it “hopelessly vague” (B5, B20-22). Defendant is wrong. At a probable cause hearing, the People bear the initial “burden of going forward” to show that the police conduct was lawful, People v. Whitehurst, 25 N.Y.2d 389, 391 (1969), while the defendant “bears the ultimate burden of proving that the evidence should not be used against him.” People v. Berrios, 28 N.Y.2d 361, 367 (1971). A police officer may arrest a person for any offense, without a warrant, if the officer has “reasonable cause to believe that such person has committed such offense” in the officer’s presence. CPL 140.10(1)(a).6 “Reasonable cause means probable cause.” People v. Maldonado, 86 N.Y.2d 631, 635 (1995). 6 CPL 70.10 (2) provides, Reasonable cause exits 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. -23- Probable cause requires a lesser quantum and different kind of evidence than either proof beyond a reasonable doubt, or that establishing a prima facie case. People v. Letendre, 264 A.D.2d 943 (3d Dept. 1999) (Graffeo, J.) (probable cause “need not rise to the level of evidence sufficient to support a conviction or prove a prima facie case”), aff’d, 94 N.Y.2d 939 (2000); see Draper v. United States, 358 U.S. 307, 312 (1959) (sufficient evidence to convict and probable cause to arrest require different “quanta and modes of proof”). Indeed, “the inquiry is not as to defendant’s guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer’s belief” that the defendant was guilty. People v. Shulman, 6 N.Y.3d 1, 25-26 (2005) (internal quotation marks and citations omitted). Probable cause exists when, from the standpoint of a reasonable person who has the same training and experience as the arresting officer, it appears more probable than not that the defendant committed the offense. People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981); People v. McRay, 51 N.Y.2d 594, 602 (1980). Subdivision 6 of Penal Law 240.20 provides, A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ...[h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse Penal Law 240.20(6). “[P]ublic inconvenience, annoyance or alarm” is a threat to “public safety, peace or order.” People v. Baker, 20 N.Y.3d at 359. The requisite mens rea may exist -24- in the absence of an actual threat of public disorder if it may readily be inferred that the defendant either intended to create such a threat, or recklessly disregarded a risk of creating such a threat. See People v. Baker, 20 N.Y.3d at 360. Factors relevant to the “public dimension” of the threat include, [T]he 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 . . . People v. Weaver, 16 N.Y.3d 123, 128 (2011). However, “there is no per se requirement that members of the public must be involved or react to the incident.” Id. at 128. The presence of “relevant circumstances” other than those expressly listed in People v. Weaver, 16 N.Y.3d at 128, can create a legitimate basis for inferring the requisite mens rea. Id. Judged by these standards, Officer Martinez lawfully arrested defendant for disorderly conduct under Penal Law 240.20(6). There was plenty of evidence in the record supporting a finding that, from Martinez’s standpoint, it appeared more probable than not that defendant committed that offense. For starters, there was reason for Martinez to believe that defendant at least recklessly disregarded a risk of creating a threat of public harm. After all, Martinez had first-hand knowledge of the neighborhood, including the block where the deli was located. By foot or in a police car, he had patrolled the area for several years. He knew that the 40 Wolves, a violent street gang, regularly “terrorize[d] the neighborhood” with robberies and shootings. -25- Further, Martinez had previously arrested two of the three gang members who were with defendant during the incident. In fact, the officer had “dealt with” various gang members “from day one being assigned to the 32nd Precinct” (A38). Against that backdrop, moreover, when Martinez first arrived at the encounter now at issue, he was responding to a radio dispatch reporting “multiple stopped in front of” the deli – alerting him to a current problem at a location he already knew to be chronically problematic. Therefore, it was reasonable for Martinez to believe it more probable than not that, when defendant stood together with the three known gang members, blocking part of the deli’s entrance on an afternoon when the place was open for business, after several police officers had already told them to move, defendant recklessly created a risk that the blockade would pose a threat to the peace or order of the deli’s customers who – as even defendant admitted in his own testimony – patronized the store on a daily basis (A79). Prospective customers might understandably even be terrified by the group congregated at the door, but it hardly needs saying that there would be at least a risk of disorder. The location of the incident on Seventh Avenue, one of the city’s primary traffic arteries, provided additional proof of the incident’s public dimension. In Harlem, Seventh Avenue, also known as Adam Clayton Powell Jr. Boulevard, is an expansive thoroughfare with a median strip separating, on each side, three traffic lanes and space for curbside parking. See http://www.nyc.gov/html/dot/downloads/pdf/2012-06-13-adam- clayton-powell-cb10.pdf (aerial photograph) (last visited June 12, 2013). The requisite -26- public dimension was manifest. Defendant’s congregation with others, therefore, plainly created at least a risk of “public inconvenience, annoyance or alarm,” within the meaning of Penal Law Section 240.20(6), and defendant showed by his repeated disobedience of the police directives to move that he was disregarding that risk. Thus, there was probable cause to believe that defendant had the mens rea for disorderly conduct. Asserting just the opposite, defendant says People v. Baker, 20 N.Y.3d at 354, is “instructive” concerning the public harm requirement (B13). In People v. Baker, the defendant had, acting alone, briefly yelled profanities at a police officer who was investigating a car in the driveway of defendant’s girlfriend’s private house. The police ultimately arrested him for disorderly conduct under Penal Law Section 240.20(3), which contemplates an actor whose recklessness toward public peace or order is manifested when he “uses abusive or obscene language, or makes an obscene gesture.”. This Court held that the police lacked probable cause to arrest for that offense, finding “no significant likelihood that defendant’s brief statements – loud though they were – would disrupt peace and order in the vicinity.” 20 N.Y.3d at 362- 363. Defendant does not expressly maintain that Baker is controlling authority on probable cause to arrest under the disorderly conduct provision at issue here, where the public harm to be contemplated must be tied instead to the actor’s congregation with others and disobedience of a lawful order to disperse. Nevertheless, he -27- consistently, albeit implicitly, assumes that the public harm factors analyzed in determining whether Baker’s profanities were sufficient to warrant arrest are just as compelling when considering defendant’s arrest for refusing to obey a lawful order to disperse (B4-5, B12-14, B16-17). Defendant’s assumption is specious: the determinative factors in public harm analysis necessarily vary from case to case. See People v. Baker, 20 N.Y.3d at 360 (public harm can depend on “other relevant circumstances”) (quoting People v. Weaver, 16 N.Y.3d at 128). This has to be all the more true when the offense for which probable cause is being examined involves markedly different proscribed conduct. For example, in Baker the defendant’s brief outburst of profanity directed at a police officer was the conduct for which he was arrested, and it was insufficient to justify an arrest in part because it was not lengthy and disruptive enough to pose a risk to public order. But here, the conduct at issue was not related to obscenities or outbursts – it was related to sidewalk congestion and access to a shop on a busy street corner. Accordingly, the loudness of defendant’s conduct was not a germane factor to the risk he posed to public order. Similarly, in Baker the defendant acted alone, and the bystanders who gathered were merely watching him but did not become aligned with him against the police. Here, by contrast, the proscribed conduct included defendant’s congregation with the others who were already aligned with defendant against the police – and they all acted together in blocking the entrance and disobeying the police. Again, the -28- conduct at issue was not comparable to Baker, and the risk posed to public order was likewise not comparable. Furthermore, defendant’s reliance on People v. Weaver, 16 N.Y.3d at 123, People v. Tichenor, 89 N.Y.2d 769 (1997), People v. Munafo, 50 N.Y.2d 326 (1980), People v. Pritchard, 27 N.Y.2d 246 (1970), People v. Smith, 19 N.Y.2d 212 (1967) (B12, B14-17, B18, B21) is misplaced. Those cases addressed whether public harm proof was sufficient to sustain a verdict of guilty of disorderly conduct after trial. To be sure, Weaver, Tichenor, Munafo, Pritchard and Smith provided guidance for probable cause analysis. But none of those cases addressed the nature or quantum of proof needed to establish probable cause. They did not control in Baker, and they do not control here.7 Notably, the Baker decision was extraordinarily detailed due to the nature of the record supplied to the Court. At the suppression hearing in Baker, the People not only presented the arresting officer’s testimony, but also introduced into evidence a videotape, complete with sound, depicting the events that led to the defendant’s 7 Similarly, People v. Jones, 9 N.Y.3d 259 (2007), cited by defendant (B17 n.5, B18 n.6) is inapposite. In Jones, the defendant was brought to trial on a deficient information. People v. Jones, 9 N.Y.3d at 262-263. An information’s factual part must establish “reasonable cause to believe that the defendant committed the offense” charged, CPL 100.40(1)(b), i.e., probable cause. See People v. Maldonado, 86 N.Y.2d at 635. It must, in addition, establish “every element of the offense charged and the defendant’s commission thereof” with non-hearsay allegations. CPL 100.40(1)(c); 100.15(3). In other words, Jones, like Weaver, Tichenor, Munafo, Pritchard and Smith, applied a standard of proof more exacting than probable cause. Thus, defendant’s reliance on Jones is misplaced. -29- arrest. People v. Baker, 20 N.Y.3d at 358. The tape was part of the appellate record; in fact, at oral argument, the Court repeatedly remarked on what could be seen and heard on the tape. Oral argument transcript: 12-16, 23 (January 8, 2013), available at http://www.nycourts.gov/ctapps/arguments/2013/Jan13/Transcripts/010813-16- 17-Transcript.pdf, last visited June 8, 2013. Further, the tape facilitated the Court’s decision because it corroborated the arresting officer’s testimony. See People v. Baker, 20 N.Y.3d at 358, 362-363. The cornucopia of information on the tape enabled the Baker Court to evaluate the public harm proof in great detail. That the record here does not expressly depict what actually occurred during the incident in question does not indicate any insufficiency in the requisite public harm proof. Since “there is no per se requirement that members of the public must be involved or react to the incident,” People v. Weaver, 16 N.Y.3d at 128, it does not matter that there was no direct evidence of such involvement or reaction. As noted, “other relevant circumstances,” People v. Weaver, 16 N.Y.3d at 128, decisively established the public harm element in the instant case. Officer Martinez’s knowledge of the neighborhood and the gang that occupied and terrorized it, his familiarity with defendant and the other men who partly blocked the deli entrance, the incident’s occurrence on a weekday afternoon when the deli was open for business, and the deli’s location on Seventh Avenue were circumstances that made it readily inferable, from Martinez’s standpoint, that it was more probable than not that defendant -30- recklessly created a risk that prospective deli customers would experience a threat of public harm. Defendant does not dispute that there was probable cause to believe he “congregate[d] with other persons in a public place.” See Penal Law 240.20 (6). Nor does he seriously challenge the existence of probable cause to believe he “refuse[d] to comply” with a police “order to disperse.” See id. He does assert, however, that the order to disperse was not “lawful,” within the meaning of Penal Law 240.20(6) (B19- 20). In this connection, defendant cites People v. Galpern, 259 N.Y. 279 (1932), for the proposition that “in order to be ‘lawful,’ a police officer’s order to disperse must not be ‘purely arbitrary,’ and must be calculated in [some] way to promote the public order” (B19). However, defendant’s paraphrase is incomplete; the more appropriate recitation of the rule is that a police directive is lawful unless “circumstances show conclusively” that the order is both “purely arbitrary” and not calculated “in any way” to promote public order. See Galpern, 259 N.Y. at 284-285. This is evident from the facts of the case and the Galpern Court’s rationale for upholding the defendant’s disorderly conduct conviction. At around midnight on a summer evening, Galpern encountered a police officer in front of a restaurant on East 14th Street in Manhattan. 259 N.Y. at 284. Galpern, along with five or six male friends, had just approached the restaurant. Id. at 281, 284. Some of the men wanted to go inside. Id. at 284. They all “momentarily” -31- congregated “on the sidewalk at the entrance to the restaurant,” and engaged “in quiet orderly conversation.” Id. at 281, 284. Other groups were nearby. Id.. at 284. A police officer, believing the various groups were “obstructing the sidewalk,” directed them to move on. 259 N.Y. at 284. In response, Galpern said, “quietly and without disorder,” that he had a right to stand on the sidewalk. Id. at 280. He refused to comply with the officer’s order, believing it was “an arbitrary assertion of authority which the officer did not have.” Id. The officer arrested Galpern and charged him with disorderly conduct. Id. at 280. A magistrate convicted Galpern. Although Galpern “had no intent to provoke a breach of the peace,” said the magistrate, he had “obstructed the sidewalk with a number of other unknown men, and refused to move on when ordered by the police officer.” Id. at 281. Additionally, the magistrate found that “the officer * * * was acting within his rights in placing the defendant under arrest.” Id. at 281 (ellipsis in original). On appeal, this Court sustained the conviction under Section 722 of the former Penal Law (L. 1923, c. 642, as amended by L. 1924, c. 476), a predecessor of the current disorderly conduct statute. See 259 N.Y. at 283; McKinney’s Consolidated Laws of New York Annotated, Penal Law 240.20(6), Book 39 at 27 (2008 main volume). The Court held that refusing to comply with a police officer’s order to move on is justified only when, the circumstances show conclusively that the police officer’s direction was purely arbitrary and was not calculated in any way to promote the public order. That is -32- not the case here. The courts cannot weigh opposing considerations as to the wisdom of the police officer’s directions when a police officer is called upon to decide whether the time has come in which some directions are called for Id. at 285-286 (emphasis added). The provision of the former Penal Law under which Galpern’s conviction was upheld provided, as relevant here, that a person was guilty of disorderly conduct when, with “with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned,” he “congregates with others on a public street and refuses to move on when ordered by the police.” People v. Galpern, 259 N.Y. at 283-284. It did not expressly mandate that the police order be “lawful.” Nevertheless, in People v. Todaro, 26 N.Y. 2d 325, 328-329 (1970), a case upholding a guilty verdict after trial under the present Penal Law 240.20(6), the Court, in order to decide whether a police dispersal order was “lawful,” relied squarely on Galpern. The Todaro Court stated that Galpern’s holding was “clearly applicable,” 26 N.Y. 2d at 328, and quoted verbatim the above underscored portion of the Galpern decision. Id. at 328-329. Here, Officer Martinez’s order to disperse, and those of the other officers, were definitely “lawful” within the meaning of Penal Law 240.20(6). The circumstances did not even suggest, let alone conclusively show, that the orders were “purely arbitrary” and not “in any way” calculated to promote public order. See Todaro, 26 N.Y. 2d at 328-329; Galpern, 259 N.Y. at 284-285. After all, the orders’ purpose was to prevent defendant and his cohorts from interfering with prospective customers’ access to the -33- deli. Moreover, the deli’s owner’s property rights would be preserved by compliance with the orders; moving defendant’s group would restore clear access to the store from the sidewalk. Thus, the dispersal orders were lawful. Indeed, the circumstances supporting the lawfulness of the dispersal orders were at least as compelling as those in People v. Todaro, 26 N.Y. 2d at 325. In Todaro, a police officer was on patrol at the corner of Seventh Avenue and 42nd Street in Manhattan. Todaro was there with three companions. During the course of an hour, the officer told the group to move three times. When the officer issued the third dispersal order, the four-person group was standing outside a subway entrance on Seventh Avenue. The group refused to comply. Todaro told the officer, “you can’t tell us to f-g move.” The officer placed Todaro under arrest and charged him with disorderly conduct under subdivisions 3 and 6 of Penal Law 240.20.8 Todaro was convicted after a trial.9 As to the Penal Law 240.20(6) conviction, the Court ruled that “the trial court could well have found beyond a reasonable doubt” that Todaro “was aware of and consciously disregarded a substantial and unjustifiable risk that public inconvenience, annoyance or alarm might result” from his refusal to comply with the officer’s orders 8 Under Penal Law 240.20 (3), a person with the mens rea for disorderly conduct is guilty if he uses “abusive and obscene language” in “a public place.” 9 Todaro was also charged with and convicted of harassment under Penal Law 240.25. The Court found insufficient proof of harassment to sustain the conviction. -34- to move on. People v. Todaro, 26 N.Y. 2d at 329.10 The Court further indicated that the officer’s dispersal order was lawful, observing that the circumstances did not “indicate any arbitrariness on the part of the police officer, charged as he was with maintaining public order on one of the busiest street corners in the world.” Id. Here, the police officers had precisely the same duty that the Todaro officer had, i.e., to maintain order. Further, all that was required here was probable cause to believe the dispersal orders were lawful, a standard satisfied by a far less persuasive showing than that required by proof beyond a reasonable doubt, the applicable standard in Todaro. Given the above-noted legitimate aims of the dispersal orders here, there was at least probable cause to believe that the orders were not arbitrary and were calculated to preserve public order. Furthermore, as the Court recognized in People v. De Bour, 40 N.Y.2d 210, 218 (1976), Among other functions, the police in a democratic society are charged with the protection of constitutional rights, the maintenance of order, the control of pedestrian and vehicular traffic, the mediation of domestic and other noncriminal conflicts and supplying emergency help and assistance Id. at 218. So, too, the New York City Charter contemplates wide-ranging police responsibilities, including duties to protect individual and property rights, regulate vehicular and pedestrian traffic (“for the facilitation of traffic and the convenience of 10 The Court also determined that Todaro had used “abusive and obscene language.” -35- the public as well as the proper protection of human life and health”), remove public nuisances, enforce laws and prevent the commission of crimes and offenses. NYC Charter, Chapter 18, Section 435 (a). In fact, this Court has squarely held that an officer performing duties delineated in the City Charter is “performing a lawful duty,” within the meaning of Penal Law 120.05(3) (second-degree assault), “performing an official function,” under Penal Law 195.05 (second-degree obstructing governmental administration), and “authorized,” under Penal Law 205.30 (resisting arrest). In re Shannon B., 70 N.Y.2d 458, 462-463 (1987). Here, De Bour and In re Shannon B. indicate that the police were entitled, if not duty-bound, to: 1) protect the rights of prospective deli customers to physical security; 2) protect the deli owner’s right to use his property for legitimate business; 3) regulate pedestrian traffic at the intersection of Seventh Avenue and 140th Street for the convenience of local residents (even if the place was not as notoriously bustling as Times Square); 4) remove the unpleasant, obnoxious and intimidating nuisance that defendant and his group created; and 5) both enforce the disorderly conduct statute and prevent violations of it. For these reasons as well, the dispersal orders were lawful under Penal Law 240.20(6). See In re Shannon B., 70 N.Y.2d at 458, 462-463; People v. De Bour, 40 N.Y.2d at 218. Defendant also claim that the Appellate Division found probable cause based on defendant’s “mere presence,” without any “conduct” on his part (B20-22), thereby “nullifying the intent requirement that saves Penal Law 240.20 from unconstitutional -36- vagueness” (B21). This claim does not merit extended discussion. In fact, defendant’s argument ignores crucial aspects of the appellate court’s decision. Thus, the claim is unpersuasive. To begin the Appellate Division implicitly affirmed the suppression court’s findings of fact -- nothing in the decision indicates otherwise. Further, the appellate court was not required to reiterate those findings by expressly stating, for example, that defendant was part of a four-man group who congregated shoulder to shoulder and partially blocked the entrance to the deli, that some of the men were gang members, or that the incident transpired on a weekday afternoon when the deli was open for business on Seventh Avenue. Defendant cites no authority for his ostensible supposition that a proper appellate decision must recite every fact pertinent fact to the outcome (see B21-22). And, while defendant ascribes enormous significance to the word “presence” in the court’s decision (B20), the context shows this was simply a shorthand reference to what the men were doing at the relevant time and place, namely, congregating in front of and partially blocking the deli entrance. Further, the Appellate Division did not find “probable cause based solely on testimony concerning the purported ‘gang backgrounds’ of [defendant] and his companions and a supposed history of ‘gang problems in the area,’” as defendant contends (B21). In the first place, the decision expressly stated the requisite acts and accompanying mental state that constitute a violation of Penal Law 240.20(6) (A5). Further, referring to Officer Martinez’s knowledge of the “gang problems that had -37- occurred at that location in the past and the gang background of several of the men,” the court indicated there was “a reasonable basis to believe” that defendant’s congregating with others and blocking the deli “could cause public inconvenience, annoyance or alarm” (A5). In other words, there was probable cause to believe defendant had the requisite mens rea. Additionally, the court’s decision expressly stated that defendant refused to comply with Martinez’s dispersal order (A5). Thus, the decision indicated the specific act performed by defendant which, combined with his reasonably perceived culpable mental state, was the final portion of his conduct giving rise to probable cause to arrest him (A5). See Penal Law 15.00(4)(“conduct means an act or omission and its accompanying mental state”). * * * In sum, there is record support for the Appellate Division’s conclusion that Officer Martinez had probable cause to arrest defendant for disorderly conduct. Therefore, the Court should affirm the Appellate Division’s order affirming the denial of defendant’s suppression motion. -38- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: FRANK GLASER Assistant District Attorney VINCENT RIVELLESE FRANK GLASER Assistant District Attorneys Of Counsel June 13, 2013