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People v. Diaz

Criminal Court of City of New York, Kings

May 23, 2013

The PEOPLE of the State of New York
v.
Edward DIAZ, Randolph Credico, Robert T. Parsons, Nicholas Malinowski, Christina Gonzales, John W. Hector, Defendants. No. 2011KN094230.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Charles Hynes, Esq., District Attorney, by A.D.A. James Coughlin, Esq., Brooklyn, for The People.

Seymour James, Esq., The Legal Aid Society, Brooklyn, for the Defendant.

Daniella Korotzer, Esq., of Counsel, for Defendant Edward Diaz.

Genesis Fisher, Esq., of Counsel, for Defendant Randolph Credico.

Julie Fry, Esq., of Counsel, for Defendant Robert Parsons.

Alex Smith, Esq., of Counsel, for Defendant Nicholas Malinowski.

Meghan D. Maurus, Esq., of Counsel, for Defendants Christina Gonzalez and John Hector.

SHAWNDYA L. SIMPSON, J.

The defendants are all charged through an amended complaint with one count each of Disorderly Conduct (Penal Law § 240.20(6)). The defendants have moved this Court for an order dismissing the charges on grounds of facial insufficiency or in the interest of justice pursuant respectively to Criminal Procedure Law (CPL) §§ 170.35, 100 .40, and § 170.40. A response to the motion was filed by the People. An order of dismissal may be issued pursuant to CPL § 170.40(2) where there is a clear compelling factor that requires dismissal in the interest of justice. For the reasons stated below, the instant proceedings are dismissed in the interest of justice pursuant to CPL § 170.40.

The factual part of the accusatory instrument upon which the defendants are arraigned reads as follows:

Deponent states that, at the above time and place, the deponent did observe the defendant and approximately fifty other individuals standing in front of the entrance door of the 73rd precinct blocking the entrance way, and that after the defendant was instructed by the police to disperse and clear said entrance way, defendant and others did refuse to disperse and clear said entrance way, defendant and others did refuse to disperse and did continue to block the entrance way of said precinct thereby preventing any police officer and police personnel from entering and exiting the 73rd precinct.

No additional supporting affidavits are included in these cases.

New York Penal Law § 240.20(6) provides that a person is guilty of disorderly conduct when " with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 6.[h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse." It must be established that the defendant, (1) intentionally and/or recklessly, (2) was a part of a congregation, and (3) refused to comply (4) with a lawful order given by the police to disperse. A " lawful order" requires that the order be given by a police officer or an authorized peace officer. It must also be established that the conduct occurred in a public place, and that the defendant ...


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