People v. Balnis
Decision Date | 16 December 1958 |
Parties | PEOPLE of the State of New York, Respondent, v. Wayne BALNIS, Theodore Christman, Arthur Gallucci, DeForest Swift, Donald Tisenchek, and Robert Warner, Defendants-Appellants. |
Court | New York County Court |
Leamy, VanWoert & Dunn, Oneonta, John K. Dunn, Oneonta, of counsel, for appellants.
Richard J. Bookhout, Dist. Atty., Oneonta, for respondent.
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
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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