People v. Galpern

• Decision Date: 01 June 1932
• Citation: 259 N.Y. 279,181 N.E. 572
• Parties: PEOPLE v. GALPERN.
• Court: New York Court of Appeals Court of Appeals

259 N.Y. 279

181 N.E. 572

PEOPLE

v.GALPERN.

Court of Appeals of New York.

June 1, 1932.

I. Silvan Galpern was convicted of disorderly conduct on the complaint of John Falchiere, and he appeals.

Affirmed.

Appeal from Court of Special Sessions.

Raphael Galpern and I. Silvan Galpern, both of New York City, for appellant.

Thomas C. T. Crain, Dist. Atty., of New York City (Robert Daru, of New York City, of counsel), for the People.

LEHMAN, J.

The defendant was charged by a police officer with ‘using threatening, abusive and insulting behaviour, with intent to provoke a breach of the peace, and whereby a breach of the peace might be occasioned; that the said defendant did then and there obstruct the sidewalk with a number of unknown men and refused to move on when ordered.’ Although the magistrate found that ‘the defendant used no threatening, abusive or insulting language’ and ‘that his behaviour was not insulting or threatening, and he had no intent to provoke a breach of the peace,’ he nevertheless found the defendant guilty of disorderly conduct and suspended sentence.

The ground of the defendant's conviction, as stated by the magistrate, was that the defendant ‘obstructed the sidewalk with a number of other unknown men, and refused to move on when ordered by the police officer, and that the officer * * * was acting within his rights in placing the defendant under arrest.’ The record shows that the arrest arose out of a dispute, conducted on each side quietly and without disorder, between a citizen, in this case a member of the bar, who asserted a right to stand upon the sidewalk of a street in quiet orderly conversation with a group of friends, and a police officer, who asserted a right to direct those who use the sidewalk to ‘move on’ when in his opinion they were obstructing the sidewalk.

The defendant doubtless believed that the officer's direction to move on was arbitrary. Failure to obey was, we may assume, not intended as a defiance of the authority of the officer enforcing the law, but rather as a vindication of the rights of the individual against what the defendant believed was an arbitrary assertion of authority which the officer did not have.

Our liberties might be seriously threatened if an individual could be punished for refusal to obey an order of a policeman or other officer of the state transcending his lawful authority. The Legislature has not so decreed. Police officers are not the final arbiters of the rights of citizens. The duty of police officers, it is true, is ‘not merely to arrest offenders, but to protect persons from threatened wrong and to prevent disorder. In the performance of their duties they may give reasonable directions.’ People v. Nixon, 248 N. Y. 182, 188, 161 N. E. 463, 466. Then they are called upon to determine both the occasion for and the nature of such directions. Reasonable discretion must, in such matters, be left to them, and only when they exceed that discretion do they transcend their authority and depart from their duty. The assertion of the rights of the individual upon trivial occasions and in doubtful cases may be ill-advised and inopportune. Failure, even though conscientious, to obey directions of a police officer, not exceeding his authority, may interfere with the public order and lead to a breach of the peace. Then the Legislature may determine whether such conduct is ‘disorderly,’ and shall subject the individual to punishment.

The Legislature has defined the offense of disorderly conduct. The problem here presented is whether the defendant's conduct falls within such definition. The Legislature has recognized that, upon the streets and in public places of a populous city, conduct may be offensive and tend to create disorder though it might be inoffensive elsewhere. So, long ago, the Legislature provided that in the city of New York a person ‘shall be deemed guilty of disorderly conduct that tends to a breach of the peace, who shall in any thoroughfare or public place in said city’ commit certain specified offenses which would not be punishable if committed elsewhere. New York City Consolidation Act, § 1458, Laws 1882, c. 410. The defendant concededly has not committed any of these specified offenses, but it is urged that his conviction is justified under the next section of the Consolidation Act, which provides: ‘Whenever it shall appear, on oath of a credible witness before any police justice in said city and county, that any person in said city and county has been guilty of any such disorderly conduct as in the opinion of such magistrate tends to a breach of the peace, the said magistrate may cause the person so complained of to be brought before him to answer the said charge.’ Section 1459.

The question whether section 1459 was intended to be merely an administrative and auxiliary provision, enabling the courts to deal with offenses elsewhere defined (People ex rel. Potter v. Board of Managers, Wayside House, 119 Misc. Rep. 428, 196 N. Y. S. 887), or whether it was intended as an extension of other definitions of disorderly conduct (People v. Lipschitz, 120 Misc. Rep. 663,200 N. Y. S. 269), has not been authoritatively decided by this court (People v. Nixon, supra). There is authority of weight that, under its terms, ‘disorderly...