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The People of the State of New York, Respondent v. Donald Wilson

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


February 16, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DONALD WILSON, APPELLANT.

Appeal from a judgment of the Justice Court of the Village of Port Chester, Westchester County (Jose Castaneda, J.), rendered December 19, 2008. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct.

People v Wilson (Donald)

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 16, 2011

PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in an information with disorderly conduct (Penal Law § 240.20 [5]). The factual portion of the information stated, in relevant part: "On 8/15/2008 at approx 21:02 hrs on Westchester Avenue, the defendant Donald Wilson (DOB 11/25/1995) did cause public inconvenience and obstruct pedestrian traffic by stopping any pedestrian walking in either direction on Westchester Ave and beg[ging] them for money. Several pedestrians were forced into the roadway to cross Westchester Ave onto the southside sidewalk to avoid the defendant."

Defendant moved to dismiss the information on the alternate grounds that the information was facially insufficient and in furtherance of justice. By order dated October 24, 2008, the Justice Court denied defendant's motion. Thereafter, defendant pleaded guilty to disorderly conduct. On appeal, defendant contends that his motion to dismiss should have been granted.

We note at the outset that defendant's arguments concerning the facial sufficiency of the information allege jurisdictional defects in the information (see People v Dreyden, 15 NY3d 100 [2010]; People v Alejandro, 70 NY2d 133 [1987]), and are therefore cognizable on appeal despite defendant's plea of guilty (see People v Dreyden, 15 NY3d at 103; see also People v Kalin, 12 NY3d 225 [2009]; People v Konieczny, 2 NY3d 569, 573 [2004]).

The information is facially sufficient as it contains factual allegations which provide reasonable cause to believe that defendant with "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . obstruct[ed] vehicular or pedestrian traffic," and, if true, establish every element thereof (see CPL 100.40 [1] [b], [c]). The allegations are also sufficiently evidentiary, as well as adequately detailed, to enable defendant to prepare a defense and to prevent his reprosecution for the same crime (see People v Dreyden, 15 NY3d 100; People v Kalin, 12 NY3d at 230).

Mere allegations that a defendant inconvenienced other pedestrians by standing on the street and blocking their passage generally fail to support a charge of disorderly conduct (People v Jones, 9 NY3d 259, 262 [2007] ["Something more than a mere inconvenience is necessary . . . [o]therwise, any person who happens to stop on a sidewalk - - whether to greet another, to seek directions or simply to regain one's bearings - - would be subject to prosecution"]; People v Nixon, 248 NY 182, 185 [1928]). Here, defendant "stopp[ed]" pedestrians, "beg[ged]" them for money and "forced" several pedestrians into the roadway, thereby creating more than "a mere inconvenience" (see People v Jones, 9 NY3d at 262-263). Moreover, unlike in Jones, where the incident occurred at approximately 2 A.M. and there was no allegation that pedestrians were moved from the sidewalk, here, according to the information, several pedestrians were "forced" into the road around 9 P.M., an hour when vehicles are likely to still be traveling. Thus, the allegations establish that defendant had the intent to or recklessly created a risk of causing public inconvenience, annoyance or alarm (see People v Tavares, 24 Misc 3d 1243[A], 2009 NY Slip Op 51863[U] [Crim Ct, NY County 2009]; People v Jackson, 18 Misc 3d 1102[A], 2007 NY Slip Op 52383[U] [Crim Ct, NY County 2007]). That there may be another, innocent explanation for defendant's conduct is an issue for trial; the People need not, for pleading purposes, disprove every conceivable defense (see generally People v Deegan, 69 NY2d 976, 979 [1987]). While the People must still meet their burden of proof at trial, the lower burden at the pleading stage has been satisfied and defendant's motion to dismiss for facial insufficiency is therefore denied.

As to defendant's remaining contention, that the accusatory instrument should be dismissed in furtherance of justice (CPL 170.40), by entering a plea of guilty, defendant forfeited his right to appellate review of the denial of this branch of the motion (see generally People v Kontos, 71 AD3d 507 [2010]; People v Arvelo, 16 AD3d 128 [2005]; People v Gerber, 182 AD2d 252 [1995]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Molia and LaCava, JJ., concur. Decision Date: February 16, 2011

20110216

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