People v. Evans

CourtNew York Court of Special Sessions
Writing for the CourtBENJAMIN GASSMAN; ARTHUR DUNAIF; RINGEL; WILLIAM E. RINGEL
Citation192 N.Y.S.2d 144,19 Misc.2d 1071
PartiesPEOPLE of the State of New York, Respondent, v. John EVANS, Defendant-Appellant.
Decision Date27 October 1959

Page 144

192 N.Y.S.2d 144
19 Misc.2d 1071
PEOPLE of the State of New York, Respondent,
v.
John EVANS, Defendant-Appellant.
Court of Special Sessions of the City of New York, Appellate
Part, Second Department.
Oct. 27, 1959.

Page 145

Frank D. O'Connor, Dist. Atty., Queens County, Long Island City (Howard D. Stave, Asst. Dist. Atty.), New York City, for respondent.

Fred Newman, New York City, for appellant.

Before GASSMAN, P. J., and RINGEL and DUNAIF, JJ.

BENJAMIN GASSMAN, Presiding Justice.

The defendant was convicted of disorderly conduct (Section 722, subdivision 8, Penal Law). The Police Officer testified that he observed the defendant for 45 minutes while the latter was seated in a pay booth of the men's room in the Long Island Bus Terminal. The officer then entered the adjoining booth and sat down. The two booths were separated by a solid partition which extended down to about 12 or 13 inches from the [19 Misc.2d 1072] floor. After a few minutes, the officer observed a naked knee thrust under the partition from the adjoining booth for about 45 seconds, when the knee was withdrawn. A few minutes later, 'two knees got on the ground and a naked erect penis was thrust from the second booth' into the booth occupied by the officer. The officer then left his booth, opened the door of the adjoining booth, where he found the defendant seated on the commode, with the bottom part of his body unclothed. He then arrested the defendant.

The defendant took the stand and generally denied the officer's testimony.

Reversal of the conviction is sought on the ground that (1) there was no evidence of loitering or solicitation, and that (2) there was no evidence of either a breach of the peace or the likelihood of a breach of the peace.

We dismiss the first ground. The Magistrate found as a fact that the defendant did loiter for the purpose of solicitation. 'Solicitation need not be in any particular form of words and it may well be

Page 146

accomplished by gesture or other indication'. People v. McCormack, 9 Misc.2d 745, 169 N.Y.S.2d 139.

The second ground, however, presents a question of law. Assuming all that the officer testified to be true, was there any evidence that the defendant intended to provoke a breach of the peace or did anything whereby a breach of the peace might have been occasioned? Section 722 of the Penal Law (known as the Disorderly Conduct statute) concerns itself exclusively with the preservation of the public peace. To constitute disorderly conduct, there must be evidence not only that (1) the defendant committed the acts charged, but also that (2) they were...

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2 practice notes
  • People v. Evans
    • United States
    • New York Court of Appeals
    • 31 Marzo 1960
    ...Appeals of New York. March 31, 1960. Appeal from Court of Special Sessions of the City of New York, Appellate Part, Second Department, 19 Misc.2d 1071, 192 N.Y.S.2d Defendant was convicted under Subdivision 8 of Section 722 of the Penal Law, Consol.Laws, c. 40, making one guilty of disorder......
  • People v. Evans
    • United States
    • New York Court of Appeals
    • 21 Enero 1960
    ...of Appeals of New York. Jan. 21, 1960. Appeal from Court of Special Sessions of the City of New York, Appellate Part, Second Department, 19 Misc.2d 1071, 192 N.Y.S.2d Defendant was convicted under Subdivision 8 of Section 722 of the Penal Law, Consol.Laws, c. 40, making one guilty of disord......
2 cases
  • People v. Evans
    • United States
    • New York Court of Appeals
    • 31 Marzo 1960
    ...Appeals of New York. March 31, 1960. Appeal from Court of Special Sessions of the City of New York, Appellate Part, Second Department, 19 Misc.2d 1071, 192 N.Y.S.2d Defendant was convicted under Subdivision 8 of Section 722 of the Penal Law, Consol.Laws, c. 40, making one guilty of disorder......
  • People v. Evans
    • United States
    • New York Court of Appeals
    • 21 Enero 1960
    ...of Appeals of New York. Jan. 21, 1960. Appeal from Court of Special Sessions of the City of New York, Appellate Part, Second Department, 19 Misc.2d 1071, 192 N.Y.S.2d Defendant was convicted under Subdivision 8 of Section 722 of the Penal Law, Consol.Laws, c. 40, making one guilty of disord......

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