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People v. Tardif

Supreme Court of New York, First Department

November 13, 2017

The People of the State of New York, Respondent,
v.
Mary Tardif, Defendant-Appellant.

         In consolidated appeals, defendant appeals from (1) a judgment of the Criminal Court of the City of New York, New York County (Marc J. Whiten, J.), rendered November 26, 2012, convicting her, upon her plea of guilty, of disorderly conduct, and imposing sentence, and (2) a judgment (same court and Judge), rendered November 26, 2012, convicting her, upon her plea of guilty, of disorderly conduct, and imposing sentence.

          PRESENT: Schoenfeld, J.P, Shulman, Ling-Cohan, J.J.

          PER CURIAM.

         Judgments of conviction (Marc J. Whiten, J.), each rendered November 26, 2012, affirmed.

         Because defendant waived prosecution by information, the accusatory instruments at issue were only required to satisfy the reasonable cause requirement of a misdemeanor complaint (see People v Dumay, 23 N.Y.3d 518, 522 [2014]).

         So viewed, the accusatory instrument charging disorderly conduct under docket number 2012NY022062 was not jurisdictionally defective. Giving the instrument "a fair and not overly restrictive or technical reading" (People v Casey, 95 N.Y.2d 354, 360 [2000]), we find "as a matter of common sense and reasonable pleading" (People v Davis, 13 N.Y.3d 17, 31 [2009]) that the factual allegations were sufficient to charge defendant with congregating with other persons in a public place and refusing to comply with a lawful order of the police to disperse (see Penal Law § 240.20[6]). The factual part of the instrument consists of averments by the arresting officer setting forth the elements of the offense. It provides the date, time and location of the offense. It states that defendant committed the offense when she "congregated] in a group while standing on a public sidewalk and jumping up and down causing people to walk around the defendant an[d] into the street to pass by"; and that deponent observed another officer, Deputy Inspector Winski "give an order to disperse and that defendant remained in said area and refused to move on." These allegations constituted facts "supporting or tending to support the charges" (CPL 100.15 [3]), "provide[d] reasonable cause to believe that the defendant committed the offense...." (CPL 100.40 [1][b]; see People v Carcel, 3 N.Y.2d 327, 333 [1957]; People v Seck, 126 A.D.3d 574');">126 A.D.3d 574 [2015], lv denied 25 N.Y.3d 1171');">25 N.Y.3d 1171 [2015]; People v Wilson, 53 Misc.3d 143');">53 Misc.3d 143 [A], 2016 NY Slip Op 51553[U] [App Term, 1st Dept 2016]), and were sufficient for pleading purposes to enable defendant to prepare a defense and prevent her from being tried twice for the same offense (People v Kasse, 22 N.Y.3d 1142, 1143 [2014]).

         Nor was the accusatory instrument under docket number 2012NY056355 jurisdictionally defective. The factual part of the instrument consists of averments by the arresting officer setting forth the elements of the offense, as well as the date, time and location of the offense. It states that defendant committed the offense when she "s[at] on the ground in front of the revolving door at Goldman Sachs" with a separately charged defendant at 9:15 a.m., "blocking the normal flow of traffic" and causing "two or three people" to "exit the building through another door" and refusing to disperse when told to by the police. Based upon these allegations, a factfinder could infer that defendant's conduct in blocking a means of pedestrian ingress and egress to a commercial building during working hours, and continuing to do so after being ordered to move, posed a threat to public safety (see People v Baker, 20 N.Y.3d 354, 359-360 [2013]) and recklessly created a substantial risk of "a potential or immediate public problem" (People v Weaver, 16 N.Y.3d 123, 128 [2011], quoting People v Munafo, 50 N.Y.2d 326, 331 [1980]).

         Our dissenting colleague invokes the First Amendment to the State and Federal constitution as a basis to invalidate the accusatory instruments, asserting that defendant was engaged in politically motivated expression as part of the Occupy Wall Street movement on the occasion of each of her arrests. The position advanced by the dissent is unwarranted, since it relies upon facts outside the four corners of the accusatory instrument to assert a defense that defendant does not now raise.

         Critically, the accusatory instruments make no mention of Occupy Wall Street, nor do the factual portions of the instruments even infer that defendant was engaging in any type of protest activity. An accusatory instrument must be construed within its four corners (see People v Thomas, 4 N.Y.3d 143, 146 [2005]; People v Alejandro, 70 N.Y.3d 133');">70 N.Y.3d 133 [1987]), and a court may not rely on external factors to create a jurisdictional defect not evident from the face of the pleading (see People v Konieczny, 2 N.Y.3d 569, 576 [2004]). Thus, it is improper for the dissent to consider these unpleaded background facts in assessing the sufficiency of the accusatory instrument.

         Moreover, defendant never so much as hinted much less claimed in her appellate brief that the accusatory instruments are jurisdictionally defective based upon First Amendment principles. It is of no moment that the issue was previously raised by defendant in a prior stage of the proceeding, specifically, in a memorandum of law submitted with her omnibus motion. Even assuming that this argument could be raised in a challenge to the facial sufficiency of the accusatory instruments, rather than as an evidentiary defense to the disorderly conduct charges (cf. People v Casey, 95 N.Y.2d 354, 360 [2000]), defendant abandoned whatever argument she may have had on this issue by not raising it in her appellate brief (see People v Alexander, 19 N.Y.3d 203, 211 [2012] ["[A] properly interposed constitutional claim may be deemed abandoned or waived if not pursued"]; People v Willey, 118 A.D.3d 1190, n [2014]["To the extent that defendant had previously asserted a constitutional claim, this would survive his guilty plea and appeal waiver; nonetheless, any such claim is deemed abandoned by his failure to raise it in his brief upon appeal"]; People v DiTommaso, 127 A.D.3d 11');">127 A.D.3d 11, 21 [2015], lv denied 25 N.Y.3d 1162');">25 N.Y.3d 1162');">25 N.Y.3d 1162');">25 N.Y.3d 1162 [2015] [defendant abandoned argument relating to violation of Confrontation Clause by failing to address it in brief on appeal] ; People v Jansen, 145 A.D.2d 870, 871 [1988], lv denied 73 N.Y.2d 923');">73 N.Y.2d 923 [1989] ["the failure to raise an issue in an appellate brief constitutes an abandonment of that issue"]; People v Purcelle, 282 A.D.2d 824, 825 [2001]). Thus, the dissent finds itself in the awkward position of advancing an argument abandoned by the appellant. "The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them" (United States v Brocksmith, 991 F.2d 1376, 1384 [7th Cir 1993], cert den 510 U.S. 999');">510 U.S. 999 [1993]).

         We do not address the rest of the dissent as our opinion adequately explains the bases for our conclusions and we do not regard the dissent as detracting from them.

         Dissenting Opinion

          Hon. Doris Ling-Cohan

         I respectfully dissent and vote to dismiss the accusatory instruments and to vacate defendant's convictions. Defendant appeals from two separate judgments of disorderly conduct (PL 240.20), upon pleas of guilty, arising out of two incidents. While I agree with the majority that the accusatory instruments must be treated as misdemeanor complaints, I find that both are facially insufficient and implicate protected First Amendment rights.

         The majority correctly concludes that defendant waived prosecution by information on both judgments. In view of defendant's waiver of her right to prosecution by information, "the standard applicable to [her] challenge to the accusatory instrument is that of a misdemeanor complaint" (People v Aragon, 28 N.Y.3d 125, 127 [2016], citing CPL 170.65 [3]; People v Dumay, 23 N.Y.3d 518, 524 [2014]; People v Williams, 54 Misc.3d 133 [A] [App Term, 1st Dept 2017]). A misdemeanor complaint must allege "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]; CPL 100.40 [4] [a]; see People v Dreyden, 15 N.Y.3d 100');">15 N.Y.3d 100');">15 N.Y.3d 100');">15 N.Y.3d 100');">15 N.Y.3d 100');">15 N.Y.3d 100');">15 N.Y.3d 100');">15 N.Y.3d 100, 102-103 [2010]) and "provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [4] [b]; see People v Dumas, 68 N.Y.2d 729');">68 N.Y.2d 729, 731 [1986]; People v Afilal, 26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050');">26 N.Y.3d 1050, 1052 [2015], revg 43 Misc.3d 142(A) [App Term, 1st Dept 2014]). Reasonable cause "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]). [1]

         Additionally, courts have held that if the factual allegations of an accusatory instrument give " an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly technical reading" (People v Casey, 95N.Y.2d 354, 360 [2000]). While the test for facial sufficiency has also been articulated as "whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy" (People v. Aragon, 28 N.Y.3d at 128, citing People v Dreyden, 15 N.Y.3d at 103), the statutory reasonable cause standard of CPL 100.40 (4) (b) has never been negated (see e.g. People v Afilal, 26 N.Y.3d 1050 [2015]; People v Dumas, 68 N.Y.2d 729');">68 N.Y.2d 729, 731 [1986]).

         1. ...


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