People v. Tichenor

• Decision Date: 08 May 1997
• Citation: 680 N.E.2d 606,89 N.Y.2d 769,658 N.Y.S.2d 233
• Parties: , 680 N.E.2d 606 The PEOPLE of the State of New York, Respondent, v. Noel TICHENOR, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 233

658 N.Y.S.2d 233

89 N.Y.2d 769, 680 N.E.2d 606

The PEOPLE of the State of New York, Respondent, v. Noel TICHENOR, Appellant.

Court of Appeals of New York.

May 8, 1997.

Louise M. Harding, Clifton Park, for appellant.

David A. Wait, District Attorney of Saratoga County, Ballston Spa (Nicholas E. Tishler and James A. Murphy, III, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

On this appeal, defendant challenges his affirmed conviction and the constitutionality of New York's disorderly conduct statute (Penal Law § 240.20[3] ) under the State and Federal Constitutions. This case arises out of an incident that occurred in September 1993 in front of and then inside a bar in downtown Saratoga Springs.

The evidence, viewed in the light most favorable to the People as we must in the procedural posture of this affirmed conviction, is as follows: A police officer walking a street beat observed Tichenor standing outside the bar just after midnight. As the officer passed by the bar, Tichenor uttered an obscenity at the officer; he also spat on the ground towards the officer's feet. The officer, who was about eight feet from Tichenor, turned and moved towards the individual. Tichenor then proceeded to shove the officer while uttering further obscenities. The officer testified that he did not observe anyone else on the street at that point in time.

Following this physical confrontation, the officer decided to arrest Tichenor and moved towards him, but Tichenor then attempted to reenter the bar. The officer put his hand on Tichenor's elbow and said, "Sir, step out here." Tichenor initially complied. While still holding onto Tichenor with his left hand, the officer reached for his handcuffs with his right hand. As this was occurring, a group of people gathered in the doorway of the bar, with some screaming "Leave him alone," adding various epithets. The patrol officer then radioed for assistance. Tichenor pulled away from the officer's grasp and moved into the bar. The officer followed him inside, and when he caught up with Tichenor and attempted to arrest him, a scuffle ensued with bar patrons joining the fray. The police who responded to the officer's call testified that when they reached the bar, Tichenor and a number of other people were on top of the patrol officer, who was on the floor. Eventually, the officers sorted out the melee, handcuffed Tichenor and placed him under arrest.

Tichenor was charged with disorderly conduct (Penal Law § 240.20), harassment in the second degree (Penal Law § 240.26) and resisting arrest (Penal Law § 205.30). Following a jury trial in the Saratoga Springs City Court, he was convicted of disorderly conduct and resisting arrest and acquitted on the harassment charge. On his appeal to County Court, the conviction was affirmed. The intermediate appellate court found sufficient evidence to support the verdict and judgment and rejected Tichenor's argument that the disorderly conduct statute was unconstitutional. A Judge of this Court granted defendant leave to appeal. We now affirm the order upholding the conviction and hold that the disorderly conduct statute is constitutional.

Appellant argues that Penal Law § 240.20(3) offends constitutional safeguards implicating free speech, vagueness and overbreadth under both the State and Federal Constitutions (N.Y. Const., art. I, § 8; U.S. Const. 1st, 14th Amends). He particularly asserts that People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166, compels a ruling in his favor. Defendant's various arguments are unavailing.

The challenged provision of the disorderly conduct statute provides in pertinent part:

"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" (Penal Law § 240.20[3] ).

In People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166, supra,, this Court held unconstitutional the former harassment statute, which provided in its pertinent part:

"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 former § 240.25[2] [repealed] ).

Defendant focuses principally upon Dietze to argue that the disorderly conduct statute is similarly infirm because the Legislature employed a parallel phrase. The analogy collapses, however, because of the critical differences in purpose, interpretation and application of these quite different penal provisions. The different treatment and result are amply supported by careful analysis and under precedents from this Court and the United States Supreme Court.

As a threshold matter, a party seeking to nullify a statute as unconstitutional must overcome the presumption of constitutionality that favors legislative enactments (People v. Demperio, 86 N.Y.2d 549, 550, 634 N.Y.S.2d 672, 658 N.E.2d 718; People v. Scalza, 76 N.Y.2d 604, 607, 562 N.Y.S.2d 14, 563 N.E.2d 705; Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 209 N.E.2d 539). Simply stated, "the invalidity of the law must be demonstrated beyond a reasonable doubt" (People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 253 N.E.2d 202; see, New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113). Defendant fails to meet even this initial burden.

In People v. Munafo, 50 N.Y.2d 326, 428 N.Y.S.2d 924, 406 N.E.2d 780, this Court stated that "[d]isorderly conduct is a statutory creation. Intended to include in the main various forms of misconduct which at common law would often be prosecuted as public nuisances * * *. [A] common thread that ran through almost all of this legislation was a desire to deter breaches of the peace or, more specifically, of the community's safety, health or morals. * * * And, although it has always been difficult to essay any precise definition of 'breach of the peace' * * *, this court has equated that term with 'public inconvenience, annoyance or alarm', the governing phrase of our current disorderly conduct statute" (id., at 330-331, 428 N.Y.S.2d 924, 406 N.E.2d 780 [citations omitted; emphasis added] ). Before that, we upheld the constitutionality of the predecessor, similarly worded disorderly conduct statute (People v. Feiner, 300 N.Y. 391, 91 N.E.2d 316, affd 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295). There, defendant was convicted of disorderly conduct as a result of delivering a provocative speech from a sidewalk soapbox to a crowd that spilled out into the street, blocking traffic (id., at 395-396, 91 N.E.2d 316). As the crowd became unruly, the police asked the defendant to desist, and when he refused and persisted in his declamations, he was arrested (id., at 397, 91 N.E.2d 316). Defendant then challenged the conviction on the grounds that the statute violated his State and Federal constitutional free speech rights (id., at 399, 91 N.E.2d 316).

In upholding the constitutionality of the former disorderly conduct statute there, this Court noted that "[w]here both the audience and the speaker are inevitably proceeding toward an eruption of civil strife * * * the power and duty of the State to punish the speaker who refuses to desist after appropriate warning is clear" (People v. Feiner, 300 N.Y. 391, 400, 91 N.E.2d 316, supra ). The United States Supreme Court affirmed this Court's decision (Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295, supra ), noting that the defendant was "neither arrested nor convicted for the making or the content of his speech. Rather, it was the reaction which it actually engendered" (id., at 319-320, 71 S.Ct. at 305-306; see, Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213). That aspect has particular resonance and applicability to the instant case scenario. This Court, moreover, has steadfastly upheld the constitutionality of New York's disorderly conduct statutes (People v. Todaro, 26 N.Y.2d 325, 329, 310 N.Y.S.2d 303, 258 N.E.2d 711; People v. Thomas, 23 N.Y.2d 659, 295 N.Y.S.2d 340, 242 N.E.2d 490, remittitur amended 23 N.Y.2d 805, 297 N.Y.S.2d 307, 244 N.E.2d 875; People v. Turner, 17 N.Y.2d 829, 271 N.Y.S.2d 274, 218 N.E.2d 316).

Appellant would have us ignore or overrule the potent stare decisis effect of these four-square precedents. In addition, he tries to shift the analytical path to People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166, supra, and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, and away from the solid array of decisions directly on point with respect to disorderly conduct. He argues that the disorderly conduct statute under which he stands convicted prohibits protected expression in violation of Dietze 's dictate. Defendant's reliance is entirely misplaced as the disorderly conduct statute as interpreted by this Court does not raise the subjective speech concerns, implicated under the former harassment statute ruled upon in Dietze. In Dietze, we stated that "unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized" (75 N.Y.2d, at 51, 550 N.Y.S.2d 595, 549 N.E.2d 1166, supra ). The case, to be sure, struck down that harassment statute as unconstitutional because it prohibited speech solely upon the basis that it was abusive and individually targeted (id.). But the breadth of the quoted statement does not control or inform the analysis to dispose of the instant case.

On the other hand, the disorderly conduct statute at the heart of this case is different in purpose, language, scope and operation. Significantly, the disorderly conduct statute challenged here applies to words and conduct reinforced by a culpable mental state to create a public disturbance. The harassment statute at issue in...