People v. Feliciano

CourtNew York Magistrate Court
Citation10 Misc.2d 836,173 N.Y.S.2d 123
Decision Date27 March 1958
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Benito FELICIANO, Defendant. City Magistrates' Court of New York City, Felony Court, Part 2, Borough of Manhattan

Page 123

173 N.Y.S.2d 123
10 Misc.2d 836
The PEOPLE of the State of New York, Plaintiff,
v.
Benito FELICIANO, Defendant.
City Magistrates' Court of New York City, Felony Court, Part
2, Borough of Manhattan.
March 27, 1958.

Page 124

[10 Misc.2d 837] James V. Hallisey, Asst. Dist. Atty., New York City, for plaintiff.

Legal Aid Society, by Paul Aronow, Brooklyn, for defendant.

CHARLES SOLOMON, City Magistrate.

The complaint herein charging disorderly conduct was dismissed on the People's case for insufficiency of proof. According to the arresting officer, Patrolman Joseph Curry, 2nd Division:

'* * * on March 21, 1958, at 2 A.M. in front of 10 St. Marks place, Benito Feliciano, the defendant, committed the offense of disorderly conduct in violation of Section 722, subdivision 8, of the Penal Law, in that with intent to provoke a breach of the peace and under circumstances whereby a breach of the peace might be occasioned, did loiter thereat for the purpose of committing a lewd or indecent act, in that he did approach and engage the deponent in conversation and did offer to give a drink to deponent if he would come to defendant's house and that he would do anything for deponent that he wanted, and when asked what he meant, the defendant did place his right hand on the covered private parts of deponent, and said 'I'll give you * * *.' (exact language is omitted because of its obscenity). After being placed under arrest, defendant said 'I thought you were my friend.''

A turkish bath is located at 10 St. Marks Place. The police officer testified as set forth in the complaint, amplifying that the transaction was

Page 125

exclusively between him and the defendant, that he had never seen the defendant before, that the whole occurrence took 'approximately a minute or two', that it was [10 Misc.2d 838] in an ordinary conversational tone of voice, that nobody stopped to look and listen while it was going on, that the defendant did not speak loud or boisterously and that he was rather friendly, and that after this brief and friendly conversation which lasted a couple of minutes, no one else being present, the policeman identified himself and placed the defendant under arrest, and that the foregoing was the whole story. In dismissing the complaint the court said to the police officer:

'I am dismissing this complaint not because I doubt what you said. I believe what occurred is as you testified. I am granting the motion to dismiss this complaint because this defendant is not charged with sexual deviation, not with indecency or lewdness. He is charged with disorderly conduct which can only occur if and when the defendant acts with intent to provoke a breach of the public peace or behaves in a manner whereby the public peace is breached or may be breached. Also, the law is that a police officer is a peace officer charged with the preservation of the public peace. This transaction was entirely between you and this defendant; as you said, a friendly conversation. Surely, this defendant did not intend to breach the public peace. He did not want to attract public attention. Had he known you were a policeman he would have had nothing to do with you. And so, notwithstanding the fact that I do not doubt you told the truth, I am required to dismiss this complaint, the law under which this prosecution occurs being what it is.'

Section 722, Sub-division 8 of the Penal Law reads:

'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: * * *

'8. Frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness; * * *'

The disorderly conduct statute is concerned exclusively with the presrvation of the public peace. People v. Perry, 265 N.Y. 362, 193 N.E....

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8 practice notes
  • People v. Carillo
    • United States
    • New York Supreme Court — Appellate Term
    • February 4, 1964
    ...by the People is, we conclude, a strained construction, one which courts traditionally and consistently condemn (People v. Feliciano, 10 Misc.2d 836, 839-840, 173 N.Y.S.2d 123, The critical terms in the Administrative Code provision under which defendant was convicted and which require inte......
  • People v. Herskowitz
    • United States
    • New York County Court
    • February 3, 1975
    ...upon the basis of personal aversion, revulsion or distaste. Justice under the law must be objective and impersonal. People v. Feliciano, 10 Misc.2d 836, 173 N.Y.S.2d 123. Even the most corrupt and reprehensible individual may not be deprived of liberty unless his guilt is established within......
  • People v. Harrison
    • United States
    • New York Magistrate Court
    • April 10, 1958
    ...and Sidney G. Sparrow, Ridgewood, for defendants. CHARLES SOLOMON, City Magistrate. In this case, as in People v. Feliciano, Mag.Ct., 173 N.Y.S.2d 123, the need for revision of Sec. 722 of the Penal Law is indicated. The complaint '* * * that at 3 A.M. on April 5th, 1958, at Lefferts Boulev......
  • People v. Evans
    • United States
    • New York Court of Special Sessions
    • October 27, 1959
    ...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 [19 Misc.2d 1073] case that if the Legislature intended to......
  • Request a trial to view additional results
8 cases
  • People v. Carillo
    • United States
    • New York Supreme Court — Appellate Term
    • February 4, 1964
    ...by the People is, we conclude, a strained construction, one which courts traditionally and consistently condemn (People v. Feliciano, 10 Misc.2d 836, 839-840, 173 N.Y.S.2d 123, The critical terms in the Administrative Code provision under which defendant was convicted and which require inte......
  • People v. Herskowitz
    • United States
    • New York County Court
    • February 3, 1975
    ...upon the basis of personal aversion, revulsion or distaste. Justice under the law must be objective and impersonal. People v. Feliciano, 10 Misc.2d 836, 173 N.Y.S.2d 123. Even the most corrupt and reprehensible individual may not be deprived of liberty unless his guilt is established within......
  • People v. Harrison
    • United States
    • New York Magistrate Court
    • April 10, 1958
    ...and Sidney G. Sparrow, Ridgewood, for defendants. CHARLES SOLOMON, City Magistrate. In this case, as in People v. Feliciano, Mag.Ct., 173 N.Y.S.2d 123, the need for revision of Sec. 722 of the Penal Law is indicated. The complaint '* * * that at 3 A.M. on April 5th, 1958, at Lefferts Boulev......
  • People v. Evans
    • United States
    • New York Court of Special Sessions
    • October 27, 1959
    ...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 [19 Misc.2d 1073] case that if the Legislature intended to......
  • Request a trial to view additional results

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