People v. Harrison

• Decision Date: 10 April 1958
• Citation: 173 N.Y.S.2d 128,11 Misc.2d 445
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Leroy HARRISON and Walter Bolden, Defendants. City Magistrates' Court of New York, Felony Court, Borough of Queens
• Court: New York Magistrate Court

Page 128

173 N.Y.S.2d 128

11 Misc.2d 445

The PEOPLE of the State of New York, Plaintiff, v. Leroy HARRISON and Walter Bolden, Defendants.

City Magistrates' Court of New York, Felony Court, Borough

of Queens.

April 10, 1958.

Arthur Gray, Asst. Dist. Atty. for Queens County, Long Island City, for plaintiff.

Allan Sturim, Long Island City, 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 charges:

'* * * that at 3 A.M. on April 5th, 1958, at Lefferts Boulevard station on 'A' train in the County of Queens, City and State of New York, the defendants Leroy Harrison and Walter Bolden, while acting together and in concert with each other, committed the offense of disorderly conduct in violation of Section 722, subdivision 6 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, the defendants entered the third car of the train, Harrison seated himself next to a sleeping man and defendant Bolden stationed himself next to the door. Harrison placed his right hand inside the right jacket pocket of the sleeping man. Deponent placed the defendants under arrest.' (Emphasis supplied.) Sec. 722, subd. 6 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. (Emphasis supplied.)'

'6. Interferes with any person in any place by jostling against such person or unnecessarily crowding him or by placing a hand in the proximity of such person's pocket, pocketbook or handbag;'

The defendant Harrison, represented by counsel, had pleaded guilty. The defendant Bolden was acquitted. The arresting officer, a New York City transit policeman, testified that his post of observation was a 'darkened dead train' about eight feet away, that the train in which the defendants were riding pulled into the Lefferts Boulevard terminal which was virtually deserted, that the defendants came out upon the platform where they had a discussion, that they then entered the next car where the sleeping man was; that Bolden, at Harrison's direction, took a position in the second car from which he could observe the car from which they had come, that Harrison sat next to the intended victim and, at a signal from Bolden, put his hand under the coat of the former, and that he saw Harrison tug at the inside pocket. The arrest followed promptly. The sleeping man did not awaken. The court said in substance that notwithstanding he believed the testimony of the People's witnesses the record required acquittal of the defendant Bolden. People v. Feliciano, supra. These defendants are not charged with being thieves. They are charged with the offense of disorderly conduct and Sec. 722 is concerned exclusively (emphasis supplied) with the preservation of the public peace. People v. Harvey, 307 N.Y. 588, 123 N.E.2d 81; People v. Perry, 265 N.Y. 362, 193 N.E.175; People v. Chesnick, 302 N.Y. 58, 96 N.E.2d 87; People v. Pieri, 269 N.Y. 315, 199 N.E. 495; People v. Tinston, 6 Misc.2d 485, 163 N.Y.S.2d 554; People v. Feliciano, supra. In People v. Harvey, supra [307 N.Y. 588, 123 N.E.2d 82], it was said: '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.' In People v. Pieri, supra, 269 N.Y. at pages 321, 322, 199 N.E. at page 497, reversing judgments of conviction under Section 722, subd. II, Chief Judge Crain said:

'First. The people must prove an intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. What is a breach of the peace? '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, 364, 193 N.E. 175.' (Emphasis supplied.)

What transpired here was in the early hours of Saturday morning. One strongly suspects the sleeper had been imbibing. It may be said he might have awakened and offered resistance. Such an occurrence would have been confined to him and the defendant Harrison, in a subway car that was unoccupied except for the defendants and the sleeping man, at about 3 o'clock in the morning, at a practically deserted terminal station, with the transit police eight feet away. The statute is concerned not with remote possibility but with immediate likelihood; not with speculation but with probability. When the transit police decided the time had come for them to act, the defendants were placed under arrest, thus eliminating the likelihood of a breach of the public peace. It would be unrealistic to attribute to these defendants an intent to breach the public peace and the story here detailed does not disclose conduct and circumstances whereby a breach of the peace may have been occasioned. Surely, it cannot be said that we have here "a disturbance of public order by an act of violence, or by an act likely to produce violence, or which, by causing consternation and alarm disturbs the peace and quiet of the community." Common sense at once suggests that this type of law breaker would not want to attract attention to himself or cause commotion of any kind. Stealth, furtiveness, unobstrusiveness, precaution characterized the defendants in their maneuvers. The arresting officer had chosen an inconspicuous place in which to conceal himself and from which to observe. Unless language is to be denied its plain meaning, Sec. 722, subd. 6 seems to say that one may 'interfere(s) with any person in any place by jostling against such person or unnecessarily crowding him or by placing a hand in the proximity of such person's pocket, pocket book or handbag' provided he does not do so with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. Furthermore: 'The most compelling criterion in the interpretation of an instrument is, of course, the language itself. * * * It would be improper, to search beyond the instrument for an assumed intent.' People v. Carroll, 3 N.Y.2d 686, 689, 148...