People v. Perkins

• Decision Date: 13 June 1990
• Parties: The PEOPLE of the State of New York v. Milford PERKINS, Defendant.
• Court: New York District Court

Page 459

558 N.Y.S.2d 459

147 Misc.2d 325

The PEOPLE of the State of New York v. Milford PERKINS, Defendant.

District Court, Nassau County,

First District, Criminal Part.

June 13, 1990.

Denis Dillon, Dist. Atty. of Nassau County by Martin D. Meaney, Asst. Dist. Atty., Mineola, for People.

Claudia S. Schultz, Mineola, for defendant.

B. MARC MOGIL, Judge.

Defendant, charged with a violation of Penal Law Section 240.20 (3) ("disorderly conduct") moved for dismissal of the information pursuant to CPL 170.30(1)(a) and (f) and 170.35(1)(a) and (c). Under 170.35(1)(c), the ground for challenge is that the statute defining the offense charged is unconstitutional or otherwise invalid.

By order dated March 5, 1990, the motion was held in abeyance and the court directed defense counsel to serve the Attorney General with the instant constitutional challenge in order to provide him with the opportunity to appear in defense of the statute. The Attorney General has chosen not to appear.

The information was sworn out by Police Officer Stephen Oswald. It states that at the Sunrise Cinema in Valley Stream, New York, the defendant shouted "fuck you" and grabbed his genitals while shouting "eat this." The above was allegedly committed while he was standing in front of approximately 100 people including the arresting officer.

The District Attorney's motion papers in opposition to the application set forth other circumstances in connection with the incident which have not been contradicted or denied in the defendant's motion papers, i.e., that the incident occurred at a long ticket line to a movie theatre. Defendant tried to "cut" to the front. Cinema Security stopped him and told him to go to the back of the line. While at the end of the line, defendant is said to have become boisterous and vulgar. Cinema Security asked the police to ask defendant to leave the premises. When the police asked defendant to leave, he is claimed to have uttered the words and committed the act charged in the information.

Pursuant to Penal Law 240.20(3), "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: In a public place, he uses abusive or obscene language, or makes an obscene gesture."

Defendant's words and action were certainly offensive and coarse. However, in light of the recent Court of Appeal's decision in People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 (1989), this court is constrained to rule that Penal Law 240.20(3) is unconstitutional and to accordingly dismiss the subject information.

In Dietze, a portion of the "harassment" statute was struck down. It was ruled that Penal Law 240.25(2) (a statute very similar to 240.20(3)), was unconstitutional. Pursuant to 240.25(2) "A person is guilty of harassment when, with intent to harass, annoy or alarm another person: In a public place, he uses abusive or obscene language, or makes an obscene gesture."

The Court voided Section 240.25(2) for overbreadth because it interpreted it as prohibiting a substantial amount of constitutionally protected expression and since its continued existence presented a significant risk of prosecution for the mere exercise of free speech. The Court ruled the statute was overbroad because it extended...