New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

Disorderly Conduct and Legal Sufficiency of Evidence Under New York Penal Law §240.20


Issue : what constitutes legally sufficient evidence for a conviction of disorderly conduct under Penal Law § 240.20(1) and (3).

Holding : the evidence was legally sufficient for the jury to find that the conduct of defendant reached the point of a potential or immediate public problem.

Facts : on May 25, 2008, Sergeant House, while on routine patrol in the Village of Newark, came upon defendant Tony Weaver yelling and waving his arms at a woman in a parking lot outside of a hotel. Both were dressed in wedding attire. When the officer stopped her vehicle, defendant walked across the street and entered a mini-mart gas station. The woman, who was sitting on the curb and in tears, explained to House that defendant and she had been married that day and had been fighting. The woman declined House’s offer of help and assured the officer that she would stay the night at the hotel.

As House began to drive out of the lot, she observed defendant leave the mini-mart. When his wife approached him, defendant again became agitated and began yelling at her. He shouted at his wife to "get the f– away from me," among a stream of other obscenities. After observing this encounter, House pulled her vehicle near defendant and suggested that he calm down and that the couple needed to take their dispute somewhere else. Defendant responded by telling the officer to "shut the f– up" because she "wasn’t his mother" and could not tell him what to do. House described defendant’s tone as "very loud" and his demeanor as "very aggressive" and "very threatening." She also believed that he was intoxicated.

Sensing that the situation was escalating and that defendant was creating a disturbance, House radioed for backup. She then exited her vehicle and warned defendant that he needed to stop yelling and swearing or he would be arrested for disorderly conduct. Defendant again loudly used profanity and declared that "if you put your hands on me, bitch, you will be taking me to jail." At around this time, Sergeant Thomson arrived in response to House’s radio call. House gave defendant a third warning to settle down. He refused to comply, instead continuing to hurl obscenities at his wife and House, causing House to conclude that defendant was not going to quiet down. House then advised defendant that he was under arrest for disorderly conduct. When House directed defendant to get into the back seat of the police vehicle, he refused and a struggle ensued, during which defendant punched Thomson in the face and injured House’s arm. The officers eventually arrested defendant after Thomson used a taser to subdue him.

Legal Analysis :

Defendant argues that the evidence was legally insufficient to sustain the disorderly conduct convictions. He maintains that his behavior did not have the requisite potential or actual ramifications related to a public disturbance because there was no proof that the altercation with his wife and the police officers attracted attention from or annoyed any bystanders.

A person is guilty of disorderly conduct when

"with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

"1. He engages in fighting or in violent, tumultuous or threatening behavior; or

"3. In a public place, he uses abusive or obscene language, or makes an obscene gesture" (Penal Law § 240.20 [1], [3]).

It is well established that "the disruptive behavior proscribed by our disorderly conduct statute be of public rather than individual dimension" (People v Munafo, 50 NY2d 326, 331 [1980]). As we have explained:

"[D]isorderly conduct is a statutory creation. Intended to include in the main various forms of misconduct which at common law would often be prosecuted as public nuisances . . . [a] common thread that ran through almost all of this legislation was a desire to deter breaches of the peace or, more specifically, of the community’s safety, health or morals. And, although it has always been difficult to essay any precise definition of breach of the peace, this court has equated that term with public inconvenience, annoyance or alarm, the governing phrase of our current disorderly conduct statute" (People v Tichenor, 89 NY2d 769, 773-774 [1997]).

Consequently, 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.

There is no per se requirement that members of the public must be involved or react to the incident. Rather, the attention generated by a defendant’s activities, or the lack thereof, is a relevant factor to be considered in the public dimension calculus. We have made clear that 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 (see People v Todaro, 26 NY2d 325, 329 [1970]).

Here, the commotion occurred during the early morning hours when peace and quiet would be expected in this small village. The incident began in a public parking lot adjacent to a hotel and extended into a public street near the hotel and mini-mart, both of which were open for business. Although there was no testimony at trial from onlookers, there was evidence that a number of people were in the immediate vicinity, whether pumping gas, using the ATM or working at the mini-mart. It can also reasonably be inferred that guests were sleeping in the nearby hotel.

Moreover, over a short time period, defendant’s conduct escalated into a very vocal and aggressive confrontation. House warned defendant on three separate occasions to cease his conduct and leave the area. Rather than heed these warnings, defendant became increasingly agitated and belligerent, repeatedly shouting obscenities at his wife and the officer. After the final warning, House determined that defendant was not going to cease creating a disturbance and effectuated his arrest with the help of Thomson. On these facts, we believe that the jury had sufficient evidence to "weigh the whole incident" logically conclude beyond a reasonable doubt that defendant recklessly created a risk of public inconvenience, annoyance or alarm within the meaning of the statute. In other words, based on the events leading up to defendant’s arrest, there is a valid line of reasoning and permissible inferences from which a jury could have found that his conduct reached the point of "a potential or immediate public problem.