People v. Perkins

• Decision Date: 03 July 1991
• Parties: The PEOPLE of the State of New York, Appellant, v. Milford PERKINS, Respondent.
• Court: New York Supreme Court

Page 750

576 N.Y.S.2d 750

150 Misc.2d 543

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

Supreme Court, Appellate Term Ninth and Tenth Judicial Districts.

July 3, 1991.

Denis Dillon, Dist. Atty. (Bruce E. Whitney and Peter Shapiro, of counsel), for appellant.

Robert Abrams, Atty. Gen. (Peter H. Schiff and Denise A. Hartman, of counsel), in his statutory capacity under Executive Law § 71, for respondent.

Before DiPAOLA, P.J., and STARK and INGRASSIA, JJ.

Appeal by the People from an order of the District Court, Nassau County (Mogil, J.) entered on June 13, 1990 dismissing an information charging defendant with disorderly conduct (Penal Law § 240.20[3] upon the ground that said statutory provision is unconstitutional (see, 147 Misc.2d 325, 558 N.Y.S.2d 459).

DiPAOLA, Presiding Justice.

In the information, defendant was charged by a Nassau County Police Officer with violating Penal Law section 240.20(3) in that in a public place, with the intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof, he committed the violation of disorderly conduct by using abusive or obscene language or making obscene gestures. It was alleged that on November 17, 1989 at about 11:15 P.M. at the Sunrise Cinemas in Valley Stream, defendant shouted, "fuck you," and grabbed his genitals while shouting, "eat this." It was further asserted that defendant was then standing in front of approximately 100 people including the arresting officer.

A pretrial motion to dismiss was brought by defendant and granted ( People v. Perkins, 147 Misc.2d 325, 558 N.Y.S.2d 459). In opposing said motion, the People set forth uncontroverted allegations that there was a long queue at the Sunrise Cinemas on the subject night and that defendant attempted to cut in at the front. The cinema's security stopped him and told him to go to the back. While at the end of the line, defendant was said to have become boisterous and vulgar. The cinema's security requested the police to ask defendant to leave the premises. When the police did so, defendant shouted, "fuck you." He then allegedly grabbed his genitals and was yelling, "eat this."

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

Any discussion of a statutory provision's constitutionality should begin with the recognition that there is a strong presumption that a statutory provision which has been duly enacted by the Legislature is constitutional and that this presumption is overborne only when the provision is demonstrated to be invalid beyond a reasonable doubt (People v. Lang, 36 N.Y.2d 366, 370, 368 N.Y.S.2d 492, 329 N.E.2d 176; McKinney's Cons.Laws of N.Y., Book 1, Statutes § 150[a]. It has been further observed that such provisions should be construed, if possible, so as to uphold their constitutionality (McKinney's Cons.Laws of N.Y., Book 1, § 150[c]. The provision which has been struck down by the court below in the case at bar has already been construed as constitutional by the Court of Appeals (People v. Todaro, 26 N.Y.2d 325, 327, 329, 310 N.Y.S.2d 303, 258 N.E.2d 711 [1970]; see also, People v. Feiner, 300 N.Y. 391, 91 N.E.2d 316 [1950], affd sub nom., Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 [1951].

Consideration of the Court of Appeals' more recent decision in People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166, does not require a different result. In said decision, the Court rendered invalid a provision stating, "A person is guilty of harassment when, with intent to harass, annoy or alarm another person ... 2. In a public place, he uses abusive or obscene language, or makes an obscene gesture" (Penal Law § 240.25[2]. The Court observed, inter alia, that "At the least, any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace ..." (People v. Dietze, supra, at 52, 550 N.Y.S.2d 595, 549 N.E.2d 1166).

The language of the statutory provision in the case before us differs from that struck down in Dietze to the extent that it proscribes speech and gestures affected "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" (Penal Law § 240.20[3]. Although the two provisions involve essentially the same conduct, the distinction to be drawn is that one provision (harassment) is directed toward an individual whereas the other (disorderly conduct) is directed toward the public in general (People v. Todaro, supra, 26 N.Y.2d at 330, 310 N.Y.S.2d 303, 258 N.E.2d 711). This distinction should not be deemed to be one without a difference, inasmuch as it is abundantly clear that the disorderly conduct provision seeks to proscribe "words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace ..." (People v. Dietze, supra ).

What, within this context, constitutes "injury," ...