People v. Upshaw

• Decision Date: 19 March 2002
• Citation: 190 Misc.2d 704,741 N.Y.S.2d 664
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>REGGIE UPSHAW, Defendant.
• Court: New York Criminal Court

190 Misc.2d 704
741 N.Y.S.2d 664

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
REGGIE UPSHAW, Defendant.

March 19, 2002.

[190 Misc.2d 705]

Lois A. White, Shrub Oak, for defendant.

Robert M. Morgenthau, District Attorney (Jeremy Saland of counsel), for plaintiff.

OPINION OF THE COURT

WILLIAM M. HARRINGTON, J.

Motion to Dismiss Based upon Lack of Facial Sufficiency

It is alleged that, within days of the September 11, 2001 terrorist assault on the World Trade Center, defendant and several alleged accomplices, on 42nd Street in the vicinity of Times Square, shouted at a gathering crowd of approximately 50 people in praise of the terrorist attack and the resulting deaths of police officers, firefighters, and civilians; vehemently expressed their shared disappointment that the carnage had not been greater; and accosted people in the crowd, yelling in the onlookers' faces, "We've got something for your asses." It is further alleged that arguments ensued between defendants and some of the crowd, and that defendant and his alleged accomplices refused to disperse after police officers asked them to do so. Defendant argues that the accusatory instrument, which charges him and two codefendants with inciting to riot (Penal Law § 240.08) and disorderly conduct (Penal Law § 240.20 [1]), is not facially sufficient and must be dismissed. Specifically, defendant argues that his actions, rather than criminal, were an exercise of his right to free speech under the First Amendment of the United States Constitution.^[1]

To be sufficient on its face, an accusatory instrument must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that defendant committed the offenses charged. (See CPL 100.15 [3]; 100.40 [1] [b].) These facts must be supported by nonhearsay allegations which, if true, establish every element of the offense. (See CPL 100.40 [1] [c].) Conclusory allegations are insufficient (see People v Dumas, 68 NY2d 729 [1986]), and where the factual portion fails to establish every element of the offense charged, a motion to dismiss for facial insufficiency must be granted. (See People v Alejandro, 70 NY2d 133 [1987].) After reviewing the complaint, and after consideration of defendant's motion to dismiss and the People's opposition thereto, the court concludes that the accusatory instrument is facially sufficient. Therefore, and for the following reasons, defendant's motion is denied.

[190 Misc.2d 706]

Inciting to Riot

Penal Law § 240.08 provides that a person is guilty of inciting to riot "when he urges ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm." (See Penal Law § 240.08.) Although Penal Law § 240.08 does not expressly provide for the element of intent, courts have recognized that in order to pass...