People v. Evans

• Decision Date: 27 October 1959
• Citation: 192 N.Y.S.2d 144,19 Misc.2d 1071
• Parties: PEOPLE of the State of New York, Respondent, v. John EVANS, Defendant-Appellant.
• Court: New York Court of Special Sessions

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.

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 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observed a naked knee thrust under the partition from the adjoining booth for about 45 seconds, when the knee was withdrawn.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 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 committed with intent to provoke a breach of the peace or under circumstances likely to cause a breach of the peace. People v. Perry, 265 N.Y. 362, 364, 193 N.E. 175, 176; People v. Pieri, 269 N.Y. 315, 322, 199 N.E. 495, 497. '* * * there must be an actual or threatened breach of the peace which in turn means a disturbance of the tranquility of the people of the state'. People v. Rothberg, 8 Misc.2d 259, 167 N.Y.S.2d 813, 814.

The mere commission by a person of any of the acts specified in Section 722 is not sufficient to spell out disorderly conduct without proof of an actual or threatened breach of the public peace. Subdivision 8 of Section 722 of the Penal Law 'is not aimed at sex deviation as such--'degeneracy'. * * * If it is our purpose to strike directly at the persons and the practices envisioned by subd. 8, we have only to make the law adequate', said the court in People v. Feliciano, 10 Misc.2d 836, 839, 173 N.Y.S.2d 123, 126, and we agree with the suggestion of the court in that case that if the Legislature intended to make acts of loitering for the purpose of soliciting men to commit a crime against nature or lewdness, crimes, all it had to do would be to add a new section, to be known as Section 722-c, entitled: 'Acts of lewdness or indecency' and to provide therein that 'any person who, in any public place, invites or solicits another to engage in or to participate with him in committing a crime against nature or an act of lewdness or indecency, shall be deemed guilty of disorderly conduct'. Such a section would obviate the necessity of proving that such acts resulted in or were likely to result in a breach of the public peace.

As the...