Disorderly Conduct in NY: Reckless Behavior Sufficient to Establish Violation

Just about every NY criminal defense attorney has either represented a client charged with Disorderly Conduct or worked out a disposition where Disorderly Conduct was offered in lieu of a top count plea. In the criminal courts of New York City, “Disorderly Conduct” can be heard throughout the hallways and courtrooms before the judge bangs his gavel to start the day until the last cases are called in the evening.

Recently, a NY County Criminal Court judge addressed Disorderly Conduct in denying a defendant’s motion to dismiss. In People v. Derrick Diaz, 2008NY062928, the complaint alleged that the police “observed the defendants 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.”

Pursuant to subsection one of Disorderly Conduct, a person is guilty of this offense when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he engages in fighting or in violent, tumultuous or threatening behavior.

The defendant argued that the alleged facts set forth in the complaint were insufficient to establish either that he intended to breach the peace or that he recklessly created such breach.

In denying the defendant’s motion to dismiss the judge noted that “[e]ven 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 ´ŻĄ15.05(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. 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)

Clearly, the Court recognized that it is not the intent that matters, but whether an individual acted reckless with respect to Disorderly Conduct. Although a challenge to this, or any charge, may fail after one particular legal attack, that does not mean that your case is insurmountable. Let the experienced criminal defense attorneys at Crotty Saland PC examine your case and explore every legal avenue to mount a stronger or different challenge on your behalf.

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