People v. Balnis

Decision Date16 December 1958
PartiesPEOPLE of the State of New York, Respondent, v. Wayne BALNIS, Theodore Christman, Arthur Gallucci, DeForest Swift, Donald Tisenchek, and Robert Warner, Defendants-Appellants.
CourtNew York County Court

Leamy, VanWoert & Dunn, Oneonta, John K. Dunn, Oneonta, of counsel, for appellants.

Richard J. Bookhout, Dist. Atty., Oneonta, for respondent.

FREDERICK W. LOOMIS, Judge.

These are appeals taken by six defendants upon their separate convictions upon pleas of guilty to informations charging them with the offense of disorderly conduct in violation of subdivision 2 of Section 722 of the Penal Law of the State of New York. The information in each case is the same and charges the defendant with 'wrongfully, unlawfully, wilfully and knowingly aiding, abetting and acting in consort with six others, did with intent to provoke a breach of the peace or whereby a breach of the peace may have been occasioned, acted in a manner to annoy, disturb and be offensive to others in a public place, to wit: The parking lot of the Evening Inn and did spill beer about my car on the hood, trunk, roof and front seat and did expectorate on same. That it was necessary to drive the car while seat was wet with beer which caused same to saturate my clothing.'

There are two elements necessary to sustain the charge here under consideration: (1) the acts must have been committed with intent to provoke a breach of the peace, or whereby a breach of the peace might be occasioned; (2) the acts must have been such as to annoy, disturb, interfere with, obstruct, or be offensive to others.

It appears to this court that the informations must be held to be insufficient on both counts.

The only allegations set forth in the informations concerning an alleged breach of the peace are that the alleged acts occurred in a public place, to wit, the parking lot of the Evening Inn. To constitute the offense of disorderly conduct there must be more than the occurrence of the forbidden acts in a public place. In addition to the occurrence in a public place, it must appear that there is a disturbance of the public order, or a causing of consternation or alarm among a substantial segment of the community, or that such a disturbance of the public peace is imminent. The cases of People v. Perry, 265 N.Y. 362, 193 N.E. 175, and People v. Feliciano, 10 Misc.2d 836, 173 N.Y.S.2d 123, are both instances where the alleged acts occurred in a public place but the informations were dismissed because there was no actual breach of the peace nor did facts appear whereby a breach of the peace might have been occasioned.

The informations here under consideration, at most, allege the mere conclusion that there was intent to provoke a breach of the peace, 'or whereby a breach of the peace may have been occasioned.' There are no factual allegations that there were even any other persons present, except the defendants, when the acts were committed. If there were no other persons present, how can it be said that any substantial portion of the public was alarmed or disturbed, or even that there was any danger of such a breach of the peace. An information, like an indictment must set forth sufficient facts to show that the crime charged has been committed and it is not sufficient to allege mere conclusions. People v. Grogan, 260 N.Y. 138, 183 N.E. 273, 86 A.L.R. 1266; People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330, 10 L.R.A.,N.S., 159; People v. Zambounis, 251 N.Y. 94, 167 N.E. 183; People v. Schultz, 301 N.Y. 495, 95 N.E.2d 815.

With regard to the second element of the offense, it also appears that the information is insufficient. Subdivision 2 of the section under consideration provides that in order to constitute the offense of disorderly conduct...

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6 cases
  • People v. Doyle
    • United States
    • New York County Court
    • 12 d2 Janeiro d2 1960
    ...and it is not sufficient to alleged mere conclusions.' People v. Grogan, 260 N.Y. 138, 183 N.E. 273, 86 A.L.R. 1266; People v. Balnis, 14 Misc.2d 928, 183 N.Y.S.2d 744, 746. In connection with this information, the defendant also alleges that the wording of the same applies to a violation o......
  • People v. Hill
    • United States
    • New York County Court
    • 31 d4 Julho d4 1969
    ...was imminent (People v. Chesnick, 302 N.Y. 58, 96 N.E.2d 87; People v. Szepansky, 25 Misc.2d 239, 203 N.Y.S.2d 306; People v. Balnis, 14 Misc.2d 928, 183 N.Y.S.2d 744). Perhaps more important, it must be established beyond a reasonable doubt that the accused Intended to breach the The statu......
  • People v. Jarmain
    • United States
    • New York City Court
    • 4 d2 Abril d2 1978
    ...725 (1962); People v. Kasloff, Co.Ct., 54 N.Y.S.2d 455 (1945); People v. Doyle, 21 Misc.2d 38, 195 N.Y.S.2d 770; People v. Balnis, 14 Misc.2d 928, 183 N.Y.S.2d 744 (1958).) ...
  • People v. Mason
    • United States
    • New York City Court
    • 6 d4 Abril d4 2023
    ..., 60 Misc 2d 277, 280 (Yates Cty Ct. 1969) [(citing People v. Chesnick , 302 NY 58 ; People v. Szepansky , 25 Misc 2d 239 ; People v. Balnis , 14 Misc 2d 928 ). The term "unreasonable noise" means a noise of a type or volume that a reasonable person, under the circumstances would not tolera......
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