People v. Jerome

• Decision Date: 05 December 1957
• Citation: 168 N.Y.S.2d 452,8 Misc.2d 883
• Parties: The PEOPLE of the State of New York v. David JEROME and Stanley J. Bailey, Jr., Defendants.
• Court: New York County Court

Page 452

168 N.Y.S.2d 452

8 Misc.2d 883

The PEOPLE of the State of New York v. David JEROME and Stanley J. Bailey, Jr., Defendants.

Erie County Court.

Dec. 5, 1957.

John F. Dwyer, Dist. Atty., Erie County, Buffalo, Kevin Kennedy, Buffalo, for defendant Jerome.

John E. Leach, Buffalo, for defendant Bailey.

MANGUSO, Judge.

The defendants, after trial, were convicted on August 29, 1957, by the Police Justice of the Village of East Aurora, Erie County, New York, of disorderly conduct in violation of Chapter 14, Section 2, Subdivision B and D of the Ordinances of said Village, and now appeal to this Court claiming the errors specified in their affidavits on appeal.

A transcript of the testimony included in the Return discloses the following credible evidence as facts:

That on or about August 17, 1957 at or near midnight it was reported to the Village Police that there was a disturbance at or near 377 Main Street in said Village. That the Village Officers, Wohlhueter and Smith, proceeded to answer the call and as the officers approached these premises they observed two unidentified men wrestling on the front lawn who were being watched by a number of their friends, who at the same time were walking back and forth into the yard hollering and talking. However, as the officers pulled into the driveway adjoining this scene the wrestlers separated and they and the spectators entered the home of Mr. and Mrs. Woosley, their hosts, located at the rear of the address.

The officers then went to the door of the Woosley residence and informed the occupants of the complaint. The defendant, David R. Jerome, stated to the officers that they had no right to tell them what to do and called one or both of them obscene names. Officer Smith thereupon entered the house and charged the defendant, David R. Jerome, with disorderly conduct. The defendant, Stanley J. Bailey, Jr., interceded and asserted the officers had no right to enter the building without a warrant, and thereupon a scuffle ensued between Bailey and Officer Smith. Bailey was subsequently charged with disorderly conduct and was partially handcuffed. While under arrest this scuffle continued on the lawn where Bailey called the officer or officers various obscene names in the presence of a group of friends of both defendants and members of the public attracted thereto. In the meantime, the defendant, David R. Jerome, became a secondary actor in the events and was able to leave the Woosley residence without actually being detained. Nevertheless, he was arrested later in front of the Police Station while seated in his automobile and charged with the violation in question.

After the defendant, Bailey, was successfully handcuffed and placed in the police car then parked in the street, he again continued to swear in a loud voice at Officer Smith either in the car or on Main Street in the Village in the presence of a crowd that had assembled there.

Now, inasmuch as the lower Court has found the defendants guilty as charged on the evidence produced by the People, it must be assumed that these and other facts that may be referred to in this opinion are based on credible testimony only.

On this appeal each of the defendants have raised these questions:

1. The Village ordinance is illegal because it is inconsistent with State laws; to wit, Section 722 of the Penal Law.

2. The information is fatally defective in that it does not specify or contain with exactness facts constituting the elements of the offense.

3. That the arrest of defendants without a warrant was illegal and that each of them was justified in resisting the unlawful arrest.

4. That the acts and words of the defendants did not constitute a violation of the Ordinance beyond a reasonable doubt as a matter of fact or law in that the obscene language was not used in a public street or place of the Village and that a disturbance did not occur on a public place.

Chapter 14, Section 2, Subdivision B and D of the Village of East Aurora provides as follows:

'Section 2. Conduct. Any person guilty of the following acts and offenses shall be deemed disorderly persons and guilty of disorderly conduct.

'(b) All persons guilty of noisy, riotous or disorderly conduct to the disturbance of the quiet of said Village.

'(d) All persons who shall publicly use any profane or obscene language in any street or public place in said Village.'

Relative to the defendant Jerome the credible evidence indicates that he used profane and obscene language only in the private residence of Mr. and Mrs. Woosley and not on a street or public place as required by the Ordinance. That any and all subsequent acts of disturbance on his part, such as the incident at the Police Station at the time of his arrest, are not embraced within the place of occurrence specified in the Information, that is to say, Main and Walnut or Maple Street in the Village, and the Justice of Peace at the trial so held in limiting the issues and sustaining objection to such testimony. It, therefore, follows that the other legal questions in issue so far as David R. Jerome is concerned are academic and the judgment of conviction against him must be reversed, the Information dismissed and the fine, if paid, remitted to him.

To determine whether or not the judgment can stand against the defendant, Stanley J. Bailey, Jr., the four questions on appeal must be resolved in the order raised.

1. Section 89, Subdivision 59 of the Village Law empowers the Village to 'enact any ordinances, not inconsistent with existing law which shall be deemed expedient or desirable for...