People v. Tinston

Decision Date28 February 1957
Citation163 N.Y.S.2d 554,6 Misc.2d 485
PartiesThe 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
CourtNew 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:

'* * * that on February 20th, 1957, at the north east corner of Ovington and Fourth Avenues, in the County of Kings, about 1 P.M., City and State of New York, the defendant, Albert Tinston, committed the offense of disorderly conduct in violation of Section 722, subdivision 2, of the Penal Law, in that with intent to provoke a breach of the peace and under circumstances whereby a breach of the peace might be occasioned, the defendant was standing thereat and two men approached the defendant and after a short conversation left and the defendant then looked at the deponent who was in a parked car with his partner and walked away going down Ovington Avenue toward Third Avenue. The deponent drove after the defendant and shouted to him that he wanted to talk to him and the defendant stated 'Who are you?' And the deponent identified himself as a police officer, showing the defendant his shield. The deponent then asked the defendant to identify himself and when refused took him to the 64th [Precinct] police station where before the desk officer the defendant identified himself. The defendant by his actions, using loud and boisterous language to the annoyance of persons living in the vicinity and passersby.'

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 'towards the direction of our vehicle, looked us over, and then immediately went south down Ovington Avenue toward Third. As he walked down he continually turned around to look at us. So we immediately went down the block there and approached him. And we said we'd like to talk to him, to you a minute. I identified myself as a police officer to him. And he says, 'I don't care who you are. Where do you punks think you are, Russia, Germany?' I then said, 'I identified myself to you; now I'd like to see your identification.' He said: 'I ain't showing you anything' causing three people in the vicinity to gather around because he was hollering. I then said, 'Now, will you show us your identification?' I tried again and he started hollering, 'I ain't showing you nothing; you better put me under arrest.' I says, 'Now, calm down.' He says 'Don't tell me to calm down.' I placed him under arrest. I brought him into the 64th precince thwereupon, while going to the precinct I asked him, 'Now, where do you live; you're under arrest.' He says, 'I live in Brooklyn.' I says, 'What's your name?' He says, 'You find out.' We went into the 64th precinct. We did find identification on him that he worked for the telephone company.'

The following colloquy then ensued between the witness and the court 'Q. Officer, I would like to know what you arrested this man for. A. Disorderly conduct.

'Q. Where is the disorderly conduct? A. Due to the abusive hollering and causing people around there to stop.

'Q. Look, Officer, this is your story: Here is a man who is walking on the streets of the Borough of Brooklyn, where presumably he has a right to be. This man stops to talk to two people, which he had a right to do. He approaches your car for some reason undisclosed in this record--it is entirely beside the point anyway--he turns away and walks down the thoroughfare. You and another police officer proceed after him. Up to this point there isn't a thing that this man has done which he did not have a perfect right to do. He is, up to this point, a law abiding citizen. You, notwithstanding the fact that up to this point he has done nothing he did not have a perfect right to do, you and your brother officer get out of the car and you stop this man, something you did not have the right to do, and you proceed to ask this man questions which he refuses to answer, which he had a perfect right to do. You ask him to disclose his identity to you. He refuses. He had a perfect right to refuse to disclose his identity to you. He begins to shout and get excited. Under the circumstances that is entirely understandable. If anyone was attracted to what was going on you and your brother officer were responsible. Not he. You thereupon tell this man * * * to calm down. You had no right to do what you did in the first place. You thereupon arrested this man, exceeding your rights and powers under the circumstances, and you take him to the police station under arrest, an unlawful arrest on your part. You then, in the police station, discover he works for the telephone company. * * * You cannot stop a citizen on the street and tell him to identify himself to you. He has no such legal obligation. If he is guilty of any violation of law, arrest him and charge him with the violation of law. But the only alleged violation of law you are charging this man with is disorderly conduct and there is no disorderly conduct here whatsoever.'

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. 'There is an increasing tendency to employ Section 722 whenever it is determined a person should be arrested. This should not be countenanced by the courts.' 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...

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