Defendant-appellant has been convicted of disorderly conduct in violation of subdivision 6 of section 240.20 of the Penal Law, after a trial on June 5, 1969, before the Hon. Lyman Pierce, Acting Police Justice of the Village of Dundee, Yates County, New York, sitting without a jury.
On May 11, 1969, at about 3:00 a.m. in the Village of Dundee a single loud blast of an automobile horn attracted the attention of the Village Police Chief who, at that moment, was in the process of following in his patrol car a blue Ford automobile on one of the main thoroughfares of the village, in an attempt to clock its speed. At the "harsh" sound of the horn the officer broke off his chase of the Ford auto, executed a U-turn in the street and returned to a grocery parking lot where he had observed two parked vehicles and from which location he testified the sound of the horn had emanated.
The Police Chief, the People's only witness, identified the two parked vehicles as a Chevrolet and a Dodge, and also identified their several occupants, including the defendant-appellant as an occupant in the driver's seat of the Chevrolet. Upon direct examination and to the question, "Are you sure from which vehicle the horn blast sounded?", the officer replied "No, sir, I am not.".
At the close of the People's case the defendant took the stand and testified he had heard an auto horn, but denied that he had sounded his horn. Parenthetically, it should be noted that the officer's information charged only that "one of the vehicles blew their horn which caused a person in an apartment to look out and also a person who was working in a restaurant to look out of his window."
Although the exact source was not established, the sound of the auto horn obviously triggered all that followed.
After stopping his patrol car, the officer asked the defendant-appellant, his passenger and the two young men occupying the Dodge automobile which one of them had sounded the horn. Each denied that any of them had done so. The officer then ordered all the young men to leave the parking lot and gave them "five minutes to get out" or, in the alternative, stated that he would arrest them "for disorderly conduct and loitering".
Although the record is not clear as to the sequence of what happened next, it is clear a verbal exchange between these young men and the officer satisfied the officer that the appellant and the others had refused his command to disperse and that he should place all of them under arrest "for loitering".
Near the close of the trial the transcript reveals the following colloquy between the court and the officer:
"Q. How long was it after you told them to disperse before you actually arrested them? A. I would say no more than two minutes on Steve -- two or three minutes on Steve.
"Q. But you did tell them that you would give them five minutes? A. I told Jim Schoonover this and was turning to Hill's car to tell Steve and Bob Coons."
At an earlier point in the trial the officer (upon cross-examination) testified as follows: "Q. So you proceeded to arrest all four for one horn blowing incident. Correct? A. Yes, sir." There is no evidence in the trial minutes that a crowd gathered.
To constitute the offense charged (disorderly conduct) there must be evidence beyond a reasonable doubt that this defendant committed acts violative ...