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People v. Diaz

November 17, 2008


The opinion of the court was delivered by: Felicia A. Mennin, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The defendant, Derrick Diaz, is charged with Resisting Arrest (Penal Law ["PL"] §205.30), and Disorderly Conduct (PL §240.20[1]). He moves for an order (1) dismissing both counts of the accusatory instrument as facially insufficient pursuant to Criminal Procedure Law ("CPL") 170.30(1)(a), 100.15(3), and 100.40(1)(c); (2) precluding the People's introduction of any statement allegedly made by him and/or identification testimony at trial, and (3) precluding the use at trial of any convictions or "prior bad acts" evidence. The People oppose the motion to dismiss and move to add a count of Harassment in the Second Degree (PL § 240.26) based on the facts alleged in the accusatory instrument.


For jurisdictional purposes, a criminal court information is sufficient on its face when it contains non-hearsay factual allegations that establish, if true, every element of the crimes charged and the defendant's commission thereof. CPL 100.15(3), 100.40(4)(b); People v Henderson, 92 NY2d 677, 679 (1999); People v Alejandro, 70 NY2d 133 (1987); People v Dumas, 68 NY2d 729 (1986). When considering a facial sufficiency claim, the court must read the allegations in the light most favorable to the People. CPL 170.45; People v Jennings, 69 NY2d 103, 114 (1986).

Disorderly Conduct

The defendant is charged with Disorderly Conductunder subsection one of PL §240.20 which provides in pertinent part that:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior[.]

The relevant factual section of the complaint alleges the following:

Deponent [Police Officer Lizabeth Acompora][on August 23, 2008, at about 00:45 hours at 250 Clinton Street, County of New York] observed the defendants*fn1 yelling and screaming and behaving in a violent, tumultuous, and threatening manner, as follows: pushing at police officers and causing a disturbance. Defendant's [sic] conduct created a public disturbance/inconvenience in that it caused a crowd to gather, disruption of the normal flow of traffic, and people to express alarm.

The defendant argues that the facts alleged are insufficient to establish either that he intended to breach the peace or that he recklessly created such breach. This court disagrees. It is reasonable to conclude from the facts alleged that, contrary to the defendant's argument, he intended to or recklessly disregarded that he would inconvenience, annoy or alarm members of the public by yelling, screaming and physically scuffling with police officers in a public place. Such an inference logically flows from the fact, alleged in the same accusatory instrument, that a crowd gathered in reaction to those violent outbursts and behaviors.

Even if the defendant's conduct as alleged failed to establish his intent to create a breach of the peace, the complaint would be sufficient to the extent that it established that the defendant recklessly created a risk of such result. "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustified risk that such result will occur or that such circumstance exists." PL §15.05(3). It is reasonable to infer from the facts alleged in the accusatory instrument that the defendant knew that his verbal outbursts and pushing of the officers created a risk that others would be drawn to the scene. As the court noted in People v. Tichenor, 89 NY2d 769 (1997), the statute in question "applies to words and conduct reinforced by a culpable mental state to create a public disturbance." Id at 775. A loud and violent confrontation with the police in a residential neighborhood late at night carries the potential of such a result.*fn2 Whether or not the defendant's conduct actually caused a public inconvenience is irrelevant to a Disorderly Conduct charge. People v. Todaro, 26 NY2d 325, 328 (1970).

Defendant cites a litany of authorities in support of his motion. However, the facts alleged here are easily distinguishable from those in the cases relied upon by the defendant. In People v. Munafo, 50 NY2d 326, the defendant's violent behavior occurred in a secluded area of his own farm "far removed from any public thoroughfare or business or residential area." Id at 331. The only persons at the scene were the defendant, a construction crew that he confronted on his property and a few passersby. By contrast, the court takes judicial notice of the fact that 250 Clinton Street is located in a high-density residential area in New York City. ...

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