People v. La Sister
| Decision Date | 10 February 1958 |
| Citation | 9 Misc.2d 518,170 N.Y.S.2d 702 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Charles LA SISTER, Defendant-Appellant. |
| Court | New York Court of Special Sessions |
William C. Chance, Jr., New York City, for defendant-appellant.
Frank S. Hogan, Dist. Atty., New York County, New York City, Harry Aid, Asst. Dist. Atty., New York City, of counsel, for respondent.
Before KOZICKE, P. J., and KOZINN and MOLLOY, JJ.
The conviction of the defendant for disorderly conduct, under subdivisions 2 to 4, Section 722 of the Penal Law because the defendant allegedly used loud, boisterous, vile and indecent language; refused to desist when ordered by the police officer and caused a crowd to collect by his actions, should be reversed.
It is conceded by the respondent that there may be some merit to the appellant's contentions that the People have failed to establish violations of subdivisions 2 and 3. We believe that no violations have been established thereunder.
As to subdivision 2, the testimony of the police officer shows that the vulgar and offensive language used was directed solely to the officer; it fails to show that it was used in the hearing or presence of any other persons or that it did 'annoy, disturb, interfere with, obstruct, or (become) offensive to others.'
The language, so addressed (People v. Nixon, 248 N.Y. 182, 161 N.E. 463, citing with approval People v. Wecker, 140 Misc. 388, 246 N.Y.S. 708) is a private annoyance to the officer, and in the absence of testimony showing that there was a breach of the peace or that it attracted undue attention or caused consternation amongst any, as the officer testified, of the 'close to 100 people' (who were either 'walking on the sidewalk' or who, in this 'very busy section with many bars on the avenue' did 'hang out outside') is insufficient to constitute disorderly conduct. To constitute disorderly conduct under this statute, said Magistrate Walter J. Bayer in a very able opinion in People on Complaint of Hersh v. Rothberg, 8 Misc.2d 259, 167 N.Y.S.2d 813, 814, 'there must be an actual or threatened breach of the peace which in turn means a disturbance of the tranquility of the people of the state.' The officer testified that he stopped the defendant while driving his car because of a traffic violation. Since the location where the incident occurred, namely: Lenox avenue between 132nd and 133rd Streets, is a 'very busy section', as testified to by the officer, the testimony by such officer, standing alone that the defendant caused a crowd to collect, deserved and should have received 'careful investigation by the magistrate.' People v. Sternberg, 142 Misc. 602, 254 N.Y.S. 488, 489. See also People v. Chesnick, 302 N.Y. 58, 96 N.E.2d 87 and People v. Cuvelier, Co.Ct., 167 N.Y.S.2d 871.
In addition, the language complained of was provoked, as...
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