Decided December 18, 2007.
For the Defendant: Steven Banks, Esq., The Legal Aid Society (Marnie L. Zien of counsel).
For the People: Robert M. Morgenthau, District Attorney, New York County (Jason Cofield of counsel).
To be sure, it is not unlawful to stand with other people on a New York City sidewalk. Contending that her prosecution for disorderly conduct premised on an alleged obstruction of pedestrian traffic involves behavior no more culpable than that, defendant moves to dismiss the charge for facial insufficiency.
In order to be sufficient on its face, an information, or a count thereof, must provide reasonable cause to believe that the defendant has committed the offense charged and contain nonhearsay allegations that, if true, establish every element of the offense and its commission by the defendant ( see CPL 100.40 [b], [c]). As relevant here, a person commits disorderly conduct when, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," he or she "obstructs vehicular or pedestrian traffic" (Penal Law § 240.20).
Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 ).
The information here alleges that on June 18, 2007, at approximately 1:41 a.m., at the corner of West 4th Street and Avenue of the Americas in Manhattan, the arresting officer observed defendant "yelling and screaming and obstructing pedestrian traffic, as follows: standing with at least ten other individuals on the sidewalk such that passersby could not pass defendant and said other individuals on the sidewalk. Defendant's conduct created a public disturbance/inconvenience in that it caused disruption of the normal flow of traffic in that [the officer] observed that at least five passersby had to walk around defendant." Because this court concludes that these allegations would, if true, establish a legally sufficient case of disorderly conduct, defendant's motion must be denied.
The court previously rendered an oral decision denying defendant's motion. This opinion serves to explain the basis for the court's prior ruling.
In People v Jones (___ NY3d ___, 2007 NY Slip Op 09070, *2 ), the Court of Appeals dismissed an information containing allegations that a police officer "observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [ sic] behavior, numerous pedestrians in the area had to walk around defendants [ sic]. . . ." In determining that these allegations were insufficient to support a charge of disorderly conduct under Penal Law § 240.20 (5), the Court explained that "[t]he conduct sought to be deterred under the statute is considerably more serious than the apparently innocent' conduct" of the defendant ( Jones, ___ NY3d at ___, 2007 NY Slip Op 09070, *3 [quoting People v Carcel, 3 NY2d 327, 331 (1957)]). "Something more than a mere inconvenienc[ing] of pedestrians is required . . . Otherwise, any person who happens to stop on a sidewalk — whether to greet another, to seek directions or simply to regain one's bearings — would be subject to prosecution under this statute" ( Jones, ___ NY3d at ___, 2007 NY Slip Op 09070, *3 [internal citation omitted]; see also People v Nixon, 248 NY 182, 185 [those congregating on the street may display "atrociously bad manners" by "discommod[ing] some other persons," but such conduct alone does not constitute disorderly conduct]).
Defendant argues that simply standing on a sidewalk with a group of other people is not disorderly conduct, and she is surely right. But in moving for dismissal on that basis, she ignores the additional allegations present in this case, and absent in Jones — allegations that suffice to "indicate how defendant . . . had the intent to or recklessly created a risk of causing public inconvenience, annoyance or alarm'" ( Jones, ___ NY3d at ___, 2007 NY Slip Op 09070, *3). For here defendant is not alleged merely to have stood quietly on a sidewalk with other persons, which then necessitated that passersby walk around her. Rather, she is alleged to have been "yelling and screaming" while "obstructing pedestrian traffic [by] standing with at least ten other individuals on the sidewalk such that passersby could not pass." Defendant's alleged conduct in "yelling and screaming" on a public sidewalk, while congregating there with others so that pedestrians were blocked from getting by, readily distinguishes her behavior from the "apparently innocent" conduct at issue in Jones and Carcel ( Jones, ___ NY3d at ___, 2007 NY Slip Op 09070, *3; Carcel, 3 NY2d at 331).
After all, the gravamen of disorderly conduct is conduct that provokes, or risks provoking, a "breach of the peace" ( People v Munafo, 50 NY2d 326, 331) or a "public disturbance" ( People v Bakolas, 59 NY2d 51, 54) — concepts codified in the Penal Law as "public inconvenience, annoyance or alarm" ( see Munafo, 50 NY2d at 331; People v Pritchard, 27 NY2d 246, 248-249; see also Penal Law § 240.20). Moreover, the statute "does not require proof of the accomplished fact of public inconvenience, annoyance or alarm; but proof only from which the risk of it, recklessly created, might be inferred" ( People v Todaro, 26 NY2d 325, 328 [internal quotation marks and citation omitted]). Surely yelling and screaming on a public sidewalk tends quintessentially toward a breach of the peace. Thus, yelling and screaming in the course of blocking the right of way of multiple pedestrians suffices to establish disorderly conduct within the meaning of Penal Law § 240.20 (5).
Here, however, the allegations do establish the actual "fact of disorder" ( Todaro, 26 NY2d at 329 [emphasis omitted]), inasmuch as the information alleges that the arresting officer "observed that at least five passersby had to walk around defendant."
Defendant would limit the court's analysis with respect to the sufficiency of the charge of obstructing pedestrian traffic to the single allegation that she stood on the sidewalk, contending that the additional allegations of yelling and screaming are irrelevant to that charge and should instead be considered only with respect to the separate count of the information charging disorderly conduct premised on unreasonable noise ( see Penal Law 240.20 ). But the Court of Appeals has expressly rejected such a "frozen frame" approach to the sufficiency of evidence of disorderly conduct, mandating instead that the allegations be analyzed in the context of "the whole incident — all the connected frames" ( People v Tichenor, 89 NY2d 769, 776 ).
Further, the facts set forth in the information sufficiently allege that defendant acted with the requisite mental state — that is, with intent to cause, or recklessly creating a risk of, public inconvenience, annoyance or alarm. The failure to expressly recite that defendant acted with such intent or recklessness is of no moment, and neither People v Hall ( 48 NY2d 927) nor People v Tarka ( 75 NY2d 996) is to the contrary.
In Hall, the defendant was charged with harassment in an information that "recited only that defendant, who it also alleges indicated that his desire was that the complainant leave the defendant's premises, did strike, shove and otherwise subject the complainant to physical contact and threatened . . . physical harm'" ( 48 NY2d at 927-928 [internal brackets omitted]). The Court of Appeals dismissed on the ground that the instrument failed to "specify an essential element of the crime, which is that the acts be done with intent to harass, annoy or alarm" ( 48 NY2d at 928 [internal quotation marks and citation omitted]). Hall, however, does not stand for the proposition that an accusatory instrument must ritualistically recite the statutory language of intent, on peril of jurisdictional dismissal. Such a formalistic reading simply cannot be squared either with the relevant statutes or with decisional law governing the standard for assessing the facial sufficiency of informations.
Under the Criminal Procedure Law, an information must, among other things, contain an accusatory part and a factual part ( see CPL 100.15). The accusatory part "must designate the offense or offenses charged" (CPL 100.15). Notably, so long as the accusatory part "designate[s]" the offenses — that is, sets forth their names and the statutory sections that the defendant is alleged to have violated — there is no further requirement that it recite the elements of those offenses as statutorily defined. The factual part of an information, by contrast, "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15). And, as noted, in order to be facially sufficient, those evidentiary facts must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant ( see CPL 100.40 [b], [c]). Of course, in the context of an intentional crime, the factual part of the information must include allegations that, if true, establish the essential element of intent.
Thus, Hall's observation that "[i]n order for an information to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be alleged" ( 48 NY2d at 927) means simply that the information is required to contain factual allegations that suffice to establish every element of the offense — including the requisite mental state. That the Court's memorandum opinion in Hall, in faulting the information before it for failing to "allege" or to "specify" the intent element, did not intend to engraft any additional requirement onto the statute beyond that of "establish[ment]" of every element by the facts alleged is evident from its citation to the very provisions setting forth that requirement — CPL 100.15 (3) and 100.40 (1) (c) ( see 48 NY2d at 927).
Thus, in People v Letang ( 14 Misc 3d 139 [A], 2007 NY Slip Op 50318[U] [App Term, 1st Dept 2007]), the court — in concluding that an information charging disorderly conduct was jurisdictionally defective for failure to "allege" the essential element of either intent or recklessness — explained that the facial insufficiency in the accusatory instrument there arose because the requisite intent to cause public inconvenience by obstructing pedestrian traffic was "not fairly inferable" from the specified police allegations set forth in the information (14 Misc 3d 139[A], 2007 NY Slip Op 50318[U], *1 [internal quotation marks and internal brackets omitted]).
Letang cited People v Tarka ( 75 NY2d 996 ), which is to the same effect. In Tarka, the Court of Appeals, in a one-paragraph memorandum opinion citing Hall, stated simply, "Inasmuch as the information charging defendant with disorderly conduct fails to allege the essential element of either intent or recklessness, as the People concede, the information is jurisdictionally defective and must be dismissed" ( 75 NY2d at 997 [internal citation omitted]). Although the facts alleged in the information at issue in Tarka are not set forth in that opinion, the Court's citation to Hall demonstrates that, as in Letang, the fatal flaw in the accusatory instrument was its failure to contain facts establishing reasonable cause to believe that the defendant acted with either of the requisite mentes reae — not the absence of a formalistic recitation of statutory language of intent or recklessness.
"So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v Casey, 95 NY2d 354, 360). That being so, there can be no requirement that an accusatory instrument recite particular incantatory words of intent in order to sufficiently plead an intentional offense. Rather, an information will be facially sufficient when the facts alleged, if true, provide reasonable cause to believe that the defendant acted with the requisite mens rea (see People v Inserra , 4 NY3d 30 [allegation that defendant's name appeared on signature line of an order of protection held sufficient to allege element — essential to charge of criminal contempt — that defendant had knowledge of the order's contents]).
Of course, when the available proof provides reasonable cause to believe that the defendant acted with an intent contrary to or different from that specifically required by the statute, additional evidence of the requisite criminal intent may be required. Thus, in Hall, where there were specific allegations that the defendant indicated his desire that the complainant leave defendant's premises ( see 48 NY2d at 927), the evidentiary facts alleged were insufficient to establish that the defendant struck and shoved the complainant with intent to harass, annoy or alarm him.
Intent, of course, "is the product of the invisible operation of [the] mind" ( People v Samuels, 99 NY2d 20, 24 [internal quotation marks and citation omitted]), and is therefore incapable of direct proof in the absence of an express declaration by the perpetrator or admission by the defendant. Typically, intent must "be inferred from the act itself . . . [or] from the defendant's conduct and the surrounding circumstances" ( People v Bracey, 41 NY2d 296, 301 [internal quotation marks and citations omitted]; see also People v Smith, 79 NY2d 309, 315). In determining questions of intent, a jury may permissibly infer that "a person intends that which is the natural and necessary and probable consequences of the act done by him" ( People v Getch, 50 NY2d 456, 465). And if a given set of facts can establish proof of intent beyond a reasonable doubt, surely those same facts must suffice for pleading purposes ( see People v Henderson, 92 NY2d 677, 680; see also People v Jennings, 69 NY2d 103, 115).
Nor does any jurisdictional defect result from the common circumstance that more than one culpable mental state is fairly inferable from the facts alleged. Rather, the same facts can reasonably support, as here, either intent or recklessness. Just as the acts of yelling and screaming and obstructing pedestrian traffic on a public sidewalk can provide reasonable cause to believe that it was the actor's conscious objective to cause public inconvenience, annoyance or alarm ( see Penal Law § 15.05), so can they reasonably support a conclusion that the actor consciously disregarded a substantial and unjustifiable risk that such inconvenience, annoyance or alarm would occur ( see Penal Law § 15.05). In general, differences in mental state with respect to a particular result "involve fine gradations along but a single spectrum of culpability'" ( People v Green, 56 NY2d 427, 432, quoting People v Stanfield, 36 NY2d 467, 473). "It is up to the jury to decide in a particular case whether the defendant acted intentionally, or recklessly, or negligently (or not at all)" (People v Suarez , 6 NY3d 202 , 212 n 6 ).
In rare circumstances, a given set of facts may be legally sufficient to establish only an intentional, and not a reckless, crime ( see People v Long, 259 AD2d 634 [2nd Dept 1999]; see also People v McMillon , 31 AD3d 136 , 139-141 [2nd Dept 2006], lv denied 7 NY3d 815 ; People v Gonzalez , 1 NY3d 464 ).
Accordingly, defendant's motion to dismiss must be denied.