People v. Madnick
Decision Date | 10 December 1960 |
Citation | 208 N.Y.S.2d 392,28 Misc.2d 850 |
Parties | PEOPLE of the State of New York, Plaintiff-Respondent, v. Wallace MADNICK, Defendant-Appellant. |
Court | New York County Court |
Machson & Gellman, Machson (Emanuel Gellman, Monticello, of counsel), for defendant-appellant.
Robert C. Williams, Asst. Dist. Atty. of Sullivan County, Monticello, for plaintiff-respondent.
Defendant appeals from a judgment of conviction of the Court of Special Sessions, Town of Thompson, wherein he plead guilty to the charge of disorderly conduct in violation of section 722, subdivision 5, of the Penal Law of the State of New York.
The pertinent part of said section states as follows:
'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: * * *
.
The basic portion of the information herein reads as follows: 'That the attached named persons, on the 26th day of Sept., 1960, at the Louis Lebowitz property, in the Town of Thompson, County of Sullivan, N. Y., at about 4:00 o'clock in the fore noon of said day, did commit the offense of Disorderly Conduct in violation of Article 70, Section 722, Subdivision 5 of the Penal Law of the State of New York by wrongfully, unlawfully, willfully, and knowingly did appear at the above stated time and place where a crap game was in progress and did become loud and boisterous thereby causing a breach of the peace.' Appellant's name is among those on the 'attached' list. It is contended on this appeal that he information is defective in that it fails to allege acts constituting the offense in question and by not alleging acts which were public in character and that, therefore, there was a lack of jurisdiction in the court below.
The Court of Appeals held in the recent case of People v. McGuire, 5 N.Y.2d 523, at pages 525-526, 186 N.Y.S.2d 250, at page 252:
The use of the words 'particular facts' is significant.
While it has been held in different cases that the same exactness or precision of pleading is not required in an information charging 'petty offenses below misdemeanor grade' (People v. Skolnick, 200 Misc. 389, 108 N.Y.S.2d 857, 859, affirmed 303 N.Y. 630, 101 N.E.2d 704; People v. Kolb, 14 Misc.2d 976, 183 N.Y.S.2d 840; People v. Patrick, 175 Misc. 997, 999, 26 N.Y.S.2d 183, 185), it is a fundamental principal of law that an information which merely states conclusions and not statements of fact is insufficient (People v. Doyle, 21 Misc.2d 38, 195 N.Y.S.2d 770, 773; People v. Kasloff, Co.Ct., 54 N.Y.S.2d 455; People v. Sas, 172 Misc. 845, 16 N.Y.S.2d 380; People v. Byrne, 195 Misc. 783, 785-786, 90 N.Y.S.2d 825, 827-828; People v. Wojcinski, 5 Misc.2d 292, 159 N.Y.S.2d 539; People v. Staples, 5 Misc.2d 619, 162 N.Y.S.2d 131, 133).
Here, the pertinent portion of the information contains mere conclusions, two in number, viz.: 'did become loud and boisterous' and 'thereby causing a breach of the peace'. It does not point out the acts that were loud and boisterous or the manner in which a breach of the peace was caused. No material facts constituting the offense are stated. Nothing factually is set forth to indicate that the objectionable conduct was 'to the annoyance or disturbance of any considerable number of persons' . What did defendant say? What did he do? Was there a considerable number of persons annoyed or disturbed and, if so, in what manner?
The Court of Appeals decision in People v. Schultz, 301 N.Y. 495, 95 N.E.2d 815 ( ), is very significant. Therein it was held at page 497 of 301 N.Y., at page 816 of 95 N.E.2d:
'Upon the law applicable to the problem here presented this court has had occasion to say: People v. Zambounis, 251 N.Y. 94, 96, 97, 167 N.E. 183, 184; and see People v. Grogan, 260 N.Y. 138, 142, 183 N.E. 273, 274, 86 A.L.R. 1266.
Here too and to repeat, there is an absence of a statement that the acts of appellant (we are left to conjecture as to what they were) were committed in a place where it tended to a breach of the peace or to the annoyance or disturbance of any considerable number of persons.
Turning to People v. Chesnick, 302 N.Y. 58, 96 N.E.2d 87, 89, our State's highest court said therein:
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