People v. Doyle

• Decision Date: 12 January 1960
• Citation: 195 N.Y.S.2d 770,21 Misc.2d 38
• Parties: PEOPLE of the State of New York, Respondent, v. Thomas C. DOYLE, Appellant.
• Court: New York County Court

Page 770

195 N.Y.S.2d 770

21 Misc.2d 38

PEOPLE of the State of New York, Respondent, v. Thomas C. DOYLE, Appellant.

Jefferson County Court.

Jan. 12, 1960.

Angus G. Saunders, Dist. Atty., Jefferson County, Watertown, for respondent.

Scanlon, Wright, Willmott & Aylward, Watertown, Russell Spencer, Watertown, of counsel, for appellant.

MILTON A. WILTSE, Judge.

The defendant was convicted upon a plea of guilty before the Honorable K. Seaman Edgely, Police Justice of the Village of Alexandria Bay, New York, on August 10, 1959, of the offense of disorderly conduct, in violation of Section 722, Subdivisions 1 and 2 of the Penal Law. From such conviction, he appeals.

Some of the grounds, upon which he seeks reversal of the judgment of conviction, require very careful consideration.

One alleges that the information upon which the present charge was based was insufficient, and that, therefore, the Court did not have jurisdiction to render judgment.

The others alleged that the defendant was not advised of his right to counsel, and of his right to an adjournment or postponement of the proceedings for the purpose of obtaining counsel, and was not given a reasonable opportunity so to do. These are all discussed collectively.

With regard to the first ground set forth above, the information states 'That one Thomas C. Doyle, on the 9th day of August, 1959, at the public sidewalk and street (Market St.) in the Village of Alexandria Bay, County of Jefferson, N. Y., at about 11;:M DST o'clock in the afternoon of said day, did commit the crime of Disorderly Conduct in violation of Art. 70 section 722 pars. 1 and 2 of the Penal Law against the person or property of People of the State of New York by wrongfully, unlawfully, willfully, maliciously and knowingly Defendant did with intent to provoke a breach of the peace, whereby a breach of the peace was occasioned did act in the following manner, did call complainant a 'flat foot' & when told not to call him a 'flat foot' called complainant a god dam 'flat foot' & began to swing at complainant with his fists, & caused a crowd to collect by such actions & conduct.'

The section of the Penal Law applicable here is as follows:

§ 722. Disorderly conduct. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:

'1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior;

'2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others;'

Complainant is a police officer of the Village of Alexandria Bay. The information charges that the acts complained of occurred on Market Street, a public street in the Village of Alexandria Bay, at about eleven o'clock in the evening of August 9, 1959. Market Street is a main thoroughfare passing the Monticello Hotel, in that Village, and leading to the St. Lawrence River.

The acts and words alleged in the information would have been (subdivision 1) offensive, threatening, abusive, or insulting to any person or persons actually on Market Street or who might have been passing by. All of the acts and conduct were admitted by the defendant's plea of guilty, and it is felt that they were such as to tend to provoke a breach of the peace, and occasion a breach of the peace. In addition, the fact that a crowd gathered on the street tends to indicate that there were persons other than the police officer and defendant actually present, who were in a position to observe defendant's acts and hear his words.

It would appear (subdivision 2) that the conduct and words of the defendant alleged in the information, were also such as to annoy, disturb, and interfere with others. By his plea of guilty, defendant admitted them. It is believed that they would tend to provoke a breach of the peace or occasion a breach of the peace.

The substance of Section 722 is 'that the acts charged must be such as are public in character and breach the public peace, or tend so to do.' People v. Harvey, 307 N.Y. 588, 123 N.E.2d 81, 82. 'The essence of the charge of disorderly conduct is that a breach of the peace may be occasioned by certain enumerated acts.' People v. Hipple, 263 N.Y. 242, 188 N.E. 725. 'It is a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.' People v. Perry, 265 N.Y. 362, 193 N.E. 175, 177; People v. Huyck, 171 Misc. 467, 12 N.Y.S.2d 811.

'An Information [it has been long established] must set forth sufficient facts to show that the crime charged has been committed 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 of Subdivision 4 of Section 722, rather than to Subdivisions 1 and 2. It has been held that a conviction in a case of disorderly conduct under Section 722 will be affirmed if the evidence establishes a violation of any of the subdivisions of the section. People v. Feiner, 300 N.Y. 391, 91 N.E.2d 316; People v. Hipple, 263 N.Y. 242, 188 N.E. 725.

The information meets the requirements established in the decisions construing this statute.

Sufficient facts are set forth in the information to show that the offense charged has been committed. Therefore, it is held that the information was sufficient and that the police justice had jurisdiction.

With regard to the allegations of the defendant that he was not advised of his right to counsel, of his right to an adjournment or a postponement of the proceedings for the purpose of obtaining counsel, and of being given a reasonable opportunity so to do, there is nothing other than the justice's return that shows what happened. This Court is ordinarily bound by the return of a Court of Special Sessions.

In this section of the State, there are very few Courts of Special Sessions wherein stenographic records are taken upon arraignment of a defendant or at the time of sentencing upon a plea of guilty; and there were none taken in this case.

In the case under consideration here, the Police Justice's Return, referring to the defendant states:

'Upon his arraignment...