People v. Smith

• Decision Date: 10 March 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Glenn S. SMITH, Appellant.
• Court: New York Supreme Court — Appellate Term

43 Misc.3d 71
986 N.Y.S.2d 737
2014 N.Y. Slip Op. 24065

The PEOPLE of the State of New York, Respondent,
v.
Glenn S. SMITH, Appellant.

Supreme Court, Appellate Term,
Second Dept., 9 and 10 Judicial Dist.

March 10, 2014.

[986 N.Y.S.2d 738]

Richard N. Lentino, Middletown, for appellant.

Francis D. Phillips, II, District Attorney, Middletown (Andrew R. Kass of counsel), for respondent.

Present: NICOLAI, P.J., IANNACCI and TOLBERT, JJ.

Appeal from a judgment of the Justice Court of the Village of Goshen, Orange County (Thomas J. Cione, J.), rendered April 11, 2012. The judgment convicted defendant, upon a jury verdict, of resisting arrest and disorderly conduct.

ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of justice, and the accusatory instrument is dismissed.

Defendant was arrested on October 14, 2011, at the Orange County courthouse, after he allegedly refused to comply with the directions of a court officer to remove his “doo rag” head covering. Defendant allegedly loudly used profanity and struggled with several court officers. After a jury trial, defendant was convicted of resisting arrest (Penal Law § 205.30) and disorderly conduct (Penal Law § 240.20[3] ).

The People's threshold contention that the appeal was not properly taken and should be dismissed because defendant did not file an affidavit of errors in accordance with CPL 460.10(3) is without merit ( see People v. Finklea, 41 Misc.3d 41, 974 N.Y.S.2d 239 [App.Term., 9th & 10th Jud. Dists.2013] ).

Defendant failed to preserve for appellate review his claim that his guilt of both disorderly conduct and resisting arrest was not proven beyond a reasonable doubt, as he failed to move to dismiss the charges at the close of all of the evidence ( seeCPL 470.05[2]; People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430 [2009];People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001] ). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we find that it was legally sufficient to establish defendant's guilt of disorderly conduct and resisting arrest beyond a reasonable doubt. With respect to disorderly conduct (Penal Law § 240.20[3] ), defendant's disruptive behavior recklessly created a substantial risk of a potential or immediate public problem ( see

[986 N.Y.S.2d 739]

People v. Clarke, 34 Misc.3d 159[A], 2012 N.Y. Slip Op. 50438[U], 2012 WL 762570 [App.Term, 2nd, 11th & 13th Jud. Dists.2012] ). Defendant's “disruptive statementsand behavior were of a public rather than an individual dimension,” and, considering the context of the incident, which occurred during a weekday morning in the Orange County courthouse, there was “adequate proof of public harm” ( People v. Baker, 20 N.Y.3d 354, 359–360, 960 N.Y.S.2d 704, 984 N.E.2d 902 [2013] ).

To the extent defendant's motion, made after the close of the People's case, sought dismissal of the disorderly conduct charge, it did not specify his claim that the First Amendment right of expression ( seeU.S. Const., 1st Amend; N.Y. Const., art. I, § 8) protected his conduct, which he raises for the first time on appeal. Thus, his motion with respect to the conviction of...