People v Martino (Giovanni)
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: RIOS, J.P., ALIOTTA and SOLOMON, JJ
Appeal from judgments of the Criminal Court of the City of New York, Kings County (Geraldine Pickett, J.), rendered February 19, 2010. The judgments convicted defendant, upon his pleas of guilty, of attempted assault in the third degree and disorderly conduct, respectively.
ORDERED that the judgments of conviction are affirmed.
Defendant was charged in a misdemeanor complaint with assault in the third degree (Penal Law § 120.00 ), menacing in the second degree (Penal Law § 120.12 ), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 ), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 ), menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26 ). Subsequently, defendant was charged, in a second misdemeanor complaint, with obstructing governmental administration in the second degree (Penal Law § 195.05), resisting arrest (Penal Law § 205.30), menacing in the third degree (Penal Law § 120.15), disorderly conduct (Penal Law § 240.20 ), and two counts of harassment in the second degree (Penal Law § 240.26 ). Defendant pleaded guilty to attempted assault in the third degree on the first docket and disorderly conduct on the second docket.
On appeal, defendant seeks reversal of both judgments, on the ground that the second accusatory instrument was facially insufficient insofar as it charged him with disorderly conduct. Although the accusatory instrument in question was a misdemeanor complaint, as conceded by the People, it must be evaluated under the standards that apply to an information (see CPL 100.40 ) because defendant did not waive his right to be prosecuted by misdemeanor information (see People v Kalin, 12 NY3d 225 ).
Pursuant to Penal Law § 240.20 (2), "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [h]e makes unreasonable noise." "A person acts recklessly" when he or she "is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists" (Penal Law § 15.05 ). The phrase "unreasonable noise . . . describes a noise of a type or volume that a reasonable person, under the circumstances, would not tolerate" (People v Bakolas, 59 NY2d 51 ). We find that the allegations in the accusatory instrument, that "defendant did bang on the informant's door refusing to leave and shouting in sum and substance bitch and whore," were sufficient to allege that defendant recklessly created a risk of public inconvenience, annoyance or alarm, particularly given the time of day, approximately 10:00 P.M., and the location, a residential building.
Accordingly, the judgments of conviction are affirmed.
Rios, J.P., Aliotta and Solomon, JJ., concur. Decision Date: December 10, 2012
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