People v. Todaro

• Decision Date: 16 April 1970
• Citation: 310 N.Y.S.2d 303,258 N.E.2d 711,26 N.Y.2d 325
• Parties: , 258 N.E.2d 711 The PEOPLE of the State of New York, Respondent, v. Russell TODARO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 303

310 N.Y.S.2d 303

26 N.Y.2d 325, 258 N.E.2d 711

The PEOPLE of the State of New York, Respondent, v. Russell TODARO, Appellant.

Court of Appeals of New York.

April 16, 1970.

James D. Constantinople and Milton Adler, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (David Otis Fuller, Jr., Michael R. Juviler and William C. Donnino, New York City, of counsel), for respondent.

BURKE, Judge.

The appellant was charged with disorderly conduct (Penal Law, § 240.20, subds. 3, 6) and harassment (Penal Law, § 240.25) on the complaint of the arresting officer that the appellant, at the corner of Seventh Avenue and 42nd Street in New York City, 'congregated with others in a public place, used abusive and obscene language and refused to comply with the lawful order of the deponent to move on after several warnings.' The officer's sworn complaint further stated that the appellant had threatened the officer with physical harm by saying 'I'll get you for this'. At the trial of the charges, the arresting officer testified that, on the night in question, he was on patrol on the corner of Seventh Avenue and 42nd Street and that he had the appellant and three companions under observation for about an hour. He testified that he asked them to move on several times within the period of an hour. The third time he asked them to move on, they were standing outside the entrance to the Seventh Avenue subway and they refused to move, telling the officer that he could not order them to do so. 'The defendant Russell Todaro told me--the first thing he said, you can't tell us to f g move. That's the first thing he said.' The officer testified that, at this point, he placed the appellant under arrest for disorderly conduct and placed him in a patrol car. It was at this point according to the officer that the 'Defendant Russell Todaro told me in the patrol car, I'll get you for this. I charged him with the additional charge of harassment.' The officer was the only prosecution witness and, at the end of his direct testimony, the appellant moved for a dismissal on the ground that the People had failed to present a prima facie case. The motion was denied and appellant called one of his companions as his only witness.

Appellant's witness testified that he and his companions, including the appellant, had come from a movie house across the street and that they had been standing on the site of the arrest 'Not more than a minute' when the officer allegedly approached and told them that he had seen them before on that block and 'told us to get out of there.' He admitted that the officer asked them to move on but said that they 'were just ready to move and then he said, into the store.' He further testified that he and his companions were standing in front of a closed newspaper stand 'between two subway entrances'; that no pedestrians had asked them to move out of the way and that no one brushed against him while he was standing at that point on the sidewalk. At the close of the evidence appellant moved for an acquittal on the ground that his guilt had not been established beyond a reasonable doubt. The motion was denied and appellant found guilty and sentenced to 'time served.'

On appeal from the judgment of conviction to the Appellate Term, the appellant contended that the evidence was legally insufficient to sustain a conviction for either disorderly conduct or harassment and the People conceded that the evidence was insufficient. The Appellate Term nevertheless affirmed the judgment of conviction, one Justice dissenting and agreeing with the concession of insufficiency. The majority concluded that the proof was sufficient and held that the 'statute does not require proof of the accomplished fact of public inconvenience, annoyance or alarm; but proof only from which the Risk of it, recklessly created, might be inferred (Penal Law, § 240.20, subd. 6).' (emphasis in the original). As to the disorderly conduct charge, we agree that the conviction should be affirmed. The statute is a substantial restatement of section 722 of the former Penal Law, which was construed in a case whose holding is clearly applicable to the present case. In People v. Galpern, 259 N.Y. 279, 181 N.E. 572, the arrest arose from a dispute between a citizen and a police officer who directed the citizen and his companions to move on. His conviction for failure to obey the police officer's direction to move on was affirmed. 'A refusal to obey such an order can be justified only where the circumstances show conclusively that the police officer's direction was purely arbitrary and was not calculated in any way to promote the public order. * * * The courts cannot weigh opposing considerations as to the wisdom of the police officer's directions when a police officer is called upon to decide whether the time has come in which some directions are called for.' (259 N.Y., at 284--285, 181 N.E., at 574). The circumstances present here do not indicate any arbitrariness on the part of the police officer, charged as he was with maintaining public order on one of the busiest street corners in the world. Moreover, appellant's emphasis on the contention that the Fact of disorder was not established, to the exclusion of the Risk that it might come to pass, ignores the very terms of the statute itself. On this record, the trial court could well have found beyond a reasonable doubt that the appellant was aware of and consciously disregarded a substantial and unjustifiable risk that 'public inconvenience, annoyance or alarm' might result from his use of clearly 'abusive and obscene language' in response to the officer's repeated...