People v. Tinston
Decision Date | 28 February 1957 |
Citation | 163 N.Y.S.2d 554,6 Misc.2d 485 |
Parties | The PEOPLE of the State of New York, Plaintiff, v. Albert F. TINSTON, Defendant. City Magistrates' Court of New York, Borough of Brooklyn, Bay Ridge Part |
Court | New York City Court |
Franklin W. Morton, Jr., Asst. Dist. Atty., Kings County, Brooklyn, for plaintiff.
Joseph Patrick Acer, Brooklyn, for defendant.
CHARLES SOLOMON, City Magistrate.
The Complaint herein charging disorderly conduct was dismissed on the People's case for insufficiency of proof. It reads:
Subdivision 2 reads:
'Acts in such a manner as to annoy, disturb, interfere with, obstruct or be offensive to others.'
The arresting officer was the sole witness for the prosecution. He testified that he and a brother officer, each in plain clothes, were seated in an automobile at Ovington and Fourth Avenues. They were there in response to a complaint. This was on February 20th at about 1 P.M. The defendant was observed coming from Bay Ridge Avenue. He had 'stopped to talk to two different men at two different intervals.' He walked
The following colloquy then ensued between the witness and the court
'
At this point the court directs attention to the disparities between the allegations in the sworn complaint and the sworn testimony of the arresting officer. According to the former, the first 'shouting' was that of the police officer. And the only remark attributed to the defendant is: 'Who are you?' Entirely natural under the circumstances. It is impossible for this court to escape the conclusion that the real reason for the arrest of the defendant is the fact that he refused to disclose his identity to the police. The complaint herein recites: 'The deponent then asked the defendant to identify himself and when refused took him [the defendant] to the 64th [Precinct] police station where before the desk officer the defendant identified himself.' What follows strongly suggests afterthought. This court knows of no legal mandate obligating the citizen to reveal his identity in circumstances such as are here related.
The defendant, it appears, is a married man and several times a grandfather. For thirty three years he has been employed by the telephone company. For about twenty years his place of employment has been in the immediate vicinity of his encounter with the police, in a highly responsible position. This was his only arrest. For many years he has been identified with the church of his denomination. In a letter addressed to the court, his pastor writes he has known the defendant and his family for twenty years, and holds him in high regard. The defendant's attorney has known him for more than twenty years. The defendant apparently was on the street during the lunch period.
The disorderly conduct statute is concerned exclusively with the preservation of the public peace. People v. Perry, 265 N.Y. 362, 193 N.E. 175; People v. Chesnick, 302 N.Y. 58, 96 N.E.2d 87. The record is completely barren of any proof that there was any intent upon the part of this defendant to provoke a breach of the public peace or that he did anything whereby a breach of the public peace might have been occasioned. There was no breach of the public peace. There is absolutely no proof that the defendant 'used loud and boisterous language to the annoyance of people living in the vicinity or passersby.' The immediately foregoing quoted language is stock phraseology in this type of complaint but this court does not recall a single instance in which such allegedly annoyed persons were produced in court.
If three people stopped, the police were as much responsible for their presence as was the defendant, if not more so. People v. Sternberg, 142 Misc. 602, 603, 254 N.Y.S. 488, 489. We do not know who they were. We do not know why they stopped, where they stopped nor how long they remained. Nor do we know if they all stopped at the same time or at different times. It is entirely possible that what attracted their attention was the shouting, in the first instance, of the police officer.
To say that the defendant 'hollered' is conclusory. People v. Swald, 190 Misc. 239, 241, 73 N.Y.S.2d 399, 400. The court feels constrained to say that more than sixteen years of experience as a magistrate compels the conclusion that the disorderly conduct statute (Penal Law, § 722) is one of the most abused in our entire penal law by both civilians and police. '* * * the matter of protection from unwarranted arrest is one of the fundamental principles of our jurisprudence.' People v. Park, 92 Misc. 369, 372, 156 N.Y.S. 816, 818.
An arrest is defined in the Code of Criminal Procedure, § 167, as 'the taking of a person into custody that he may be held to answer for a crime.' See article entitled 'Law of Arrest' in the January, 1955, issue of 'Spring 3100', official publication of the New York City Police Department. It is well to note here that police officers are peace officers (Code Crim.Proc. § 154) and as such are charged with preserving the public peace. They have not only powers but duties and responsibilities (New York City Charter, under caption 'Police Department', § 435). In detailing the powers and duties of the police department, the Charter provision says, among other things: 'The...
To continue reading
Request your trial-
State ex rel. Branchaud v. Hedman
...518; People v. Henneman, 367 Ill. 151, 10 N.E.2d 649; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; People v. Tinston, 6 Misc.2d 485, 163 N.Y.S.2d 554. ...
-
People v. Brim
...is merely that of a witness. McQuhae v. Rey, 3 Misc. 550, 23 N.Y.S. 16 bottom. Ours is a government of laws and not of men. People v. Tinston, 6 Misc.2d 485, 491 top, 163 N.Y.S.2d 554, 561 top; People ex rel. McCarren v. Dooling, 128 App.Div. 1, 8 top, 112 N.Y.S. 71, 76 top, affirmed 193 N.......
-
People v. Kassover
...desirable, can never justify impermissible means. People v. Dioguardi, 8 A.D.2d 426, 188 N.Y.S.2d 84, 93; People v. Tinston, 6 Misc.2d 485, at page 491, 163 N.Y.S.2d 554, at page 561. 'The fact that a case occurs in the Magistrates' Court does not mean that the legal rights of the defendant......
-
People on Complaint of Hughes v. Ziegler
...of persons.' New York City Charter, § 435. At times over-zealous enforcement begets invasions of fundamental rights. People v. Tinston, 6 Misc.2d 485, 163 N.Y.S. 554. Not unlike the situation here is the case of People v. Barber, 289 N.Y. 378, 46 N.E.2d 329, where the police officer arreste......