Disorderly Conduct Defenses

What is disorderly conduct? Disorderly conduct is a violation, not a crime, under the New York Penal Law Section 240.20. It is a broad statute that encompasses a multitude of prohibited conduct. However, experienced attorneys have successfully argued, when seeking dismissal of the charges, that the statute must be narrowly construed.

In the case of People v Ferguson, 2015 NY SLIP OP 51274, the court dismissed the criminal complaint against the defendant after finding that the complaint was facially insufficient.

Ferguson was charged with disorderly conduct after having been observed yelling at another person on a public street, causing five people to stop and stare. The court felt that the facts as stated, did not meet the requirements of causing “public alarm” or engaging in “tumultuous conduct”, both necessary elements of Penal Law 240.20 (1), disorderly conduct.

As noted in the Ferguson case, all subdivisions of disorderly conduct, have a requirement that the actor engaged in the conduct intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk thereof. Consequently, the same “intent” requirement applies to all prohibited conduct under Pl 240.20, i.e. conduct involving unreasonable noise, using abusive or obscene language or gesture in a public place, disturbing lawful assembly (without authority to do so); obstructing vehicular traffic; obstructing pedestrian traffic; refusing lawful order to disperse; or creating a hazardous or physically offensive condition.

Whether there has been public inconvenience, annoyance or alarm is fact and case specific. Courts will examine the surrounding circumstance, the number of people attracted to the scene, why they were attracted to the scene, and the date, time and place of incident.

In the case of People v Baker, 20 NY3d 354, the court dismissed the disorderly conduct charge after finding that yelling obscenities  on the street at two police officers did not meet the requirement for a finding of “public harm”

Likewise, in Ferguson the court found that the fact that a few bystanders gathered around to watch did not meet the public harm requirement of the statute. Other cases have also reached similar results. People v Castro, 29 Misc 3d 1217 and People v Palmer 176 Misc. 2d  813.

In People v Gonzalez, 2015 NY SLIP OP 05515, the Court of Appeals addressed the disorderly conduct statute, specifically 240.20 (3),  using obscene or abusive language in a public place. Gonzalez was charged with yelling obscenities at police officers in a NYC subway station, provoking “looks of surprise and curiosity from passengers and evasive movements from others.” Citing the case of People v Baker, the court dismissed the complaint, finding that the rant  against the officers did not constitute disorderly conduct in that Gonzalez’ conduct did not rise to the level above for it to become a potential or imminent public problem.

If you find yourself in need of a, seasoned, knowledgeable criminal attorney, please call The Law Office of Jeffrey L. Emdin at (212) 265-1350 or e-mail at jemdin@defendulaw.com.

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