People v. Pettigrew

• Decision Date: 02 February 1972
• Citation: 69 Misc.2d 985,332 N.Y.S.2d 33
• Parties: PEOPLE of the State of New York v. David E. PETTIGREW, Defendant.
• Court: New York District Court

Page 33

332 N.Y.S.2d 33

69 Misc.2d 985

PEOPLE of the State of New York v. David E. PETTIGREW, Defendant.

District Court, Suffolk County, First District.

Feb. 2, 1972.

George J. Aspland, Dist. Atty. of Suffolk County, Hauppauge (Hirsch H. Katz, Asst. Dist. Atty., Bay Shore, of counsel), for the People.

MacIntyre, Burke, Smith, Curry, Hammill & O'Brien, Commack (Eugene J. O'Brien, Commack, of counsel), for defendant.

MEMORANDUM

JOHN V. VAUGHN, Judge.

The defendant was arrested and charged with committing the offense of disorderly conduct in violation of Sec. 240.20 of the Penal Law. The defendant, dressed as a turkey, in conjunction with another, dressed as Santa Claus, was making speeches and handing out literature criticizing the commercialism of Christmas, the American involvement in the Vietnam War, the Kent State incident, racial inequality, and other matters. This conduct caused crowds of 75 to 100 people to gather, subsequently increasing to about 150 blocking the sidewalk and causing the blockage of part of the street, to the extent that both pedestrian and vehicular traffic were impeded. Moreover, police authorities asked the defendant to move on, which request was refused.

The provisions of Penal Law Sec. 240.20 are:

'A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or

2. He makes unreasonable noise; or

3. In a public place, he uses abusive or abscene language, or makes an obscene gesture; or

4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or

5. He obstructs vehicular or pedestrian traffic; or

6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or

7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Disorderly conduct is a violation.'

It should be noted that an accused's conduct, in order to constitute the offense, must have been with Intent to cause public inconvenience, annoyance or alarm or, In the alternative, the accused's conduct must have been such that it recklessly created a risk of public inconvenience, annoyance or alarm.

The defendant maintains that the charge should be dismissed on three grounds.

1. The information in its accusatory portion charged the defendant with violating only subdivision six of Sec. 240.20 and that therefore any evidence regarding the violation of any other subdivision of that statute is irrelevant and not admissible.

2. The defendant's conduct did not constitute a violation of the statute, primarily because the necessary elements of intent or, in the alternative, recklessness, were absent.

3. Even if the defendant's conduct did constitute a violation of Sec. 240.20, his words and actions were constitutionally protected by the First and Fourteenth Amendments of the United States Constitution and by the correlative sections of the New York State Constitution, dealing with freedom of speech and of assembly.

I.

The defendant's first contention regarding the charge in the information can be disposed of quickly. The Court of Appeals has determined that when an accused is charged with violating a specific subdivision of the disorderly conduct statute, a judgment of conviction in such a case will be affirmed if the evidence establishes a violation of any of the subdivisions of that section. (Peo. v. Carcel, 3 N.Y.2d 327, 165 N.Y.S.2d 113, 144 N.E.2d 81 (1957)). Indeed, it has been held that the accusatory instrument need not even mention any particular section number of the statute in question. (Peo. v. Dioguardo, 303 N.Y. 514, 104 N.E.2d 881 (1952)).

II.

We turn now to the defendant's next contention that his conduct did not constitute disorderly conduct within the meaning of the statute. The cases cited by the defendant in support of his position are, in order:

Peo. v. Phillips, 245 N.Y. 401, 157 N.E. 508 (1927)

Peo. v. Smith, 19 N.Y.2d 212, 278 N.Y.S.2d 832, 225 N.E.2d 531 (1967)

Peo. v. Monnier, 280 N.Y. 77, 19 N.E.2d 789 (1939)

Peo. v. McCauliff, 267 N.Y. 581, 196 N.E. 590 (1935)

Peo. v. Reid, 180 Misc. 289, 40 N.Y.S.2d 793 (County Ct. Madison Co. 1943)

Peo. v. Hill, 60 Misc.2d 277, 303 N.Y.S.2d 265 (County Ct. Yates Co. 1969)

Peo. v. Chesnick, 302 N.Y. 58, 96 N.E.2d 87 (1950)

The court will now consider each of these cases individually and distinguish them factually from the case at bar.

The holding in the Phillips case was that the evidence was simply insufficient to sustain a conviction in that there was no proof that the defendant collected the people who did collect or that he acted with an intent to provoke a breach of the peace. The trial judge charged the jury that "if there is no strike and he is marching up and down in front of this place of business he is guilty of disorderly conduct". (Peo. v. Phillips at p. 403, 157 N.E. at p. 509). The Court of Appeals held that this was not sufficient to support a conviction.

Similarly, in the Smith case, the court wrote that the People must prove that the defendant collected those who did collect And that he did so either with the intent to provoke a breach of the peace or that a breach of the peace would naturally result from what he did. In that case, the court felt that the crowd was drawn primarily by the apprehension and arrest of a speeding driver, and not by the defendant. In the instant case, the defendant makes a similar argument, pointing out that the arresting officer testified that he could not say how much of the crowd was drawn by the defendant and how much of it was gathered by the Santa Claus. We feel that the question is merely theoretical. There was sufficient evidence to establish that at least Some of the crowd was attracted by the defendant. Moreover, it is apparent that, even if the Santa Claus were not present, some sort of a crowd would surely collect to watch a man dressed as a turkey.

The next four cases cited by the defendant in reliance thereon can be succinctly distinguished. In McCauliff, the altercation that was the basis for the disorderly conduct charge took place in the defendant's home; and in Reid and Chesnick, the commotion occurred in the hallway of an apartment building. In all three cases, the courts held that the inconvenience or annoyance created was a private one and not a public one: clearly a different situation from the case before us now. And in the Monnier decision, the commotion was ruled a private one because it was caused by the defendant over the telephone.

That leaves us with the matter of Peo. v. Hill. In that case, a police officer heard a single loud blast of a car horn at 3:00 a.m., drove into a parking lot to question the defendant and some other people as to who was responsible, and then ordered the defendant out of the parking lot. He refused to go. The court declined to convict the defendant primarily because there was no intent on his part to cause any public inconvenience nor did he recklessly create the risk thereof, but rather the commotion arose spontaneously from the circumstances described.

Perhaps the leading case in New York for the guidelines for disorderly conduct is Peo. v. Nixon, 248 N.Y. 182, 161 N.E. 463 (1928). Six appeals were argued together; two cases were reversed, and in four the convictions were affirmed. The defendants were picketing in a labor dispute, parading four abreast, but doing so in a quiet and orderly fashion, not threatening, abusive or insulting. A few pedestrians were forced to enter the roadway in order to get around the picketers, but they were not annoyed or inconvenienced by this fact. There was no order by any police officer to the picketers to disperse. With reference to the two reversals of convictions, the Court of Appeals wrote:

'The sole question is whether a number of pedestrians walking, quietly, four abreast, on the sidewalk, creating no excitement or disturbance, may Without warning by the police be arrested for disorderly conduct . . .'

'In the absence of evidence that the defendant caused substantial annoyance to others, or persisted in their conduct after protest from others or Warning from a police officer, we find the evidence insufficient to sustain the conviction of the defendants in this case.' (Peo. v. Nixon at pp. 187--188, 161 N.E. at p. 466). (Emphasis added).

The Nixon court then discussed and specifically distinguished the other four cases in which the defendants had been warned to stop what they were doing:

'Police officers are guardians of the public order. Their duty is not merely to arrest offenders, but to protect persons from threatened wrong and to prevent disorder. In the performance of their duties they may give reasonable directions. Present at the point where the defendants were congregating they might early sense the possibility of disorder. Even a protest from pedestrians who were annoyed by the defendants' conduct might be a significant element in determining whether persistence in such conduct was wrongful. Enough has been shown in these cases to justify the officers in warning the defendants. Refusal to heed the warning so given, persistence in parading the street in groups thereafter, is, perhaps, so significant of a contumacious disregard of the rights of others that it supports the finding of guilt of the defendants. In these cases the judgments must be affirmed.' (Peo. v. Nixon at pp. 188--189, 161 N.E. at p. 466).

On the other hand, in Peo. v. Perry, 265 N.Y. 362, 193 N.E. 175 (1934) the defendants' convictions for disorderly conduct were reversed where they had waged a fist fight in a restaurant after closing. The court ruled that the defendants had not annoyed, disturbed or interfered with any members of the public, and coined the phrase, subsequently much quoted, that a breach of the peace sufficient to...