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Charge of Disorderly Conduct Dismissed Because Allegations Do Not Support The Charge

The People of the State of New York v. Richard Sauerwald, Defendant, 2010NY064777

Judge Tamiko Amaker

Decided: April 7, 2011


The defendant is charged with one count each of Resisting Arrest (PL §205.30) and Disorderly Conduct (PL §240.20[3]).

The defendant, in an omnibus motion, seeks: (1) Dismissal of the Accusatory Instrument for Facial Insufficiency, (2) Dismissal of the Accusatory Instrument for Lack of Probable Cause, (3) an Order to Compel a Bill of Particulars and Discovery, (4) a Huntley/Dunaway Hearing, and (5) a Mapp Hearing.

The defendant's omnibus motion is decided as follows:


The defendant moves to dismiss the accusatory instrument for facial insufficiency pursuant to Criminal Procedure Law §§170.30(1)(a) and 170.35. For the reasons stated herein, the defendant's motion is granted.

Pursuant to CPL §100.40(1), an information is sufficient on its face when it substantially conforms with the requirements of CPL §100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof.

"'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(2). Importantly, this "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial," see People v. Henderson, 92 NY2d 677, 680 (1999). That is, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000); People v. Kalin, 12 NY3d 225 (2009).

The factual portion of the instant accusatory instrument alleges that on September 1, 2010 at about 3:03 a.m. on the Main Concourse of 1 Pennsylvania Plaza in the County and State of New York:

Deponent [Police Officer Thomas Sullivan] states that deponent observed the defendant at the above location, to wit a public place, shouting and screaming obscenities, screaming in substance: I CAN TAKE PICTURES. LEAVE ME ALONE. GET OUT OF HERE. I'LL KICK YOUR ASS. Defendant's conduct created a public disturbance/inconvenience in that it caused people to express annoyance and alarm.

Deponent further states that when deponent was placing the defendant under arrest for the offense(s) described above, the defendant: (i) twisted in towards the officer; and (ii) threw his arms up and down thereby making handcuffing difficult.

Disorderly Conduct

The defendant argues that the allegations in the instant accusatory instrument, if true, are insufficient to support a charge of Disorderly Conduct. This court agrees.

A person is guilty of Disorderly Conduct when "with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof: (3) [i]n a public place, he uses abusive or obscene language, or makes an obscene gesture." For a charge of disorderly conduct to stand, it is necessary that the disruptive behavior "be of a public rather than individual dimension." People v. Munafo, 50 NY2d 326 (1980). That is, "a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes 'a potential or immediate public problem.'" People v. Weaver, 16 NY3d 123 (2011), quoting People v. Munafo, 50 NY2d at 331. When determining whether a defendant's alleged actions carried public ramifications, the court must consider the following relevant factors: "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; People v. Munafo, 50 NY2d at 331.

The factual portion of the instant accusatory instrument contains no facts of an evidentiary character that, if true, support the allegation that the defendant intended to cause a public inconvenience, annoyance or alarm or recklessly created a risk thereof. While it is not required that members of the public be involved or react to the incident (see People v. Weaver, 16 NY3d 123), there is nothing in the facts alleged that would support a reasonable inference that the defendant's statements were intended to have any public impact or that they recklessly created a risk thereof. Rather, the allegations indicate that the defendant's statements were not directed at anyone other than Officer Sullivan. Although the accusatory instrument alleges that the defendant's statements "caused people to express annoyance and alarm," there are no specific allegations to support this conclusion by Officer Sullivan. That is, there are no factual allegations of an evidentiary nature describing how such people expressed their annoyance and alarm. See People v. Jackson, 26 Misc 3d 1230(A) (Crim Ct, New York County 2010). As such, the allegations, if true, fail to establish that the defendant's statements gave rise to "a potential or immediate public problem." People v. Munafo, 50 NY2d at 331.

Accordingly, as the allegations do not support a violation of any of the remaining subdivisions of Disorderly Conduct, the defendant's motion to dismiss this count is granted, and this count is dismissed.

Resisting Arrest

Additionally, the defendant claims that the allegations that he resisted arrest are insufficient because there are no allegations of an evidentiary character that, if true, would establish that his underlying arrest was authorized. As noted above, the allegations regarding the defendant's commission of Disorderly Conduct are facially insufficient, and the information is left without any allegations that would support the element that the defendant's arrest was authorized. As the Court of Appeals has repeatedly reminded us, "[i]t is an essential element of the crime of resisting arrest that the arrest be authorized and, absent proof that the arresting officer had a warrant or probable cause to arrest defendant for commission of some offense, a conviction cannot stand." People v. Alejandro, 70 NY2d 133, 135 (1987) (citations omitted); see People v. Peacock, 68 NY2d 675 (1986); People v. Parker, 33 NY2d 669 (1973). The defendant's motion to dismiss the count of Resisting Arrest is, thus, granted.

Because the defendant's motion to dismiss the accusatory instrument is granted, the court does not reach the defendant's remaining motions as they are moot.

The foregoing constitutes the opinion, decision and order of the court.

People v. Sauerwald, 2010NY064777, NYLJ 1202492925491, at *1 (Crim, NY, Decided April 7, 2011)

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