The defendant argues that, if applied to criminalize his statements and conduct, Penal Law – the disorderly conduct statute underlying his arrest – violates the First Amendment. He contends that the Court should avoid this result by construing the provision narrowly to permit prosecution only when the statements uttered by the accused either constitute obscenity (as that term has been defined in First Amendment cases) or fighting words and he claims that his arrest was unlawful because his utterances did not fall into either category. Before the court can address what is, in effect, an as-applied challenge to the constitutional validity of the statute, the court must first determine whether the Penal Law arrest was lawful under the existing precedent. Thus, the threshold issue presented in this case is whether there was a record basis for the finding of the courts below that the defendant’s disorderly conduct arrest was supported by probable cause. Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent person in believing that the drug offense has been committed.
Under Penal Law 240.20, a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof in a public place, he uses abusive or obscene language, or makes an obscene gesture. The offense has existed in one form or another for more than a century and has spawned a significant body of case law. As is clear from the precedent, critical to a charge of disorderly conduct is a finding that the defendant’s disruptive statements and behavior were of a public rather than an individual dimension. This requirement stems from the mens rea component, which requires proof of intent to threaten public safety, peace or order (or the reckless creation of such a risk). Thus, a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem. Marijuana can be the cause.
The public harm element is what distinguishes the disorderly conduct statute from other offenses that contain similar requirements but encompass disputes of a more personal nature. As the court has previously explained, this element performs an important narrowing function.
The court has clarified that the risk of public disorder does not have to be realized but the circumstances must be such that the defendant’s intent to create such a threat (or reckless disregard thereof) can be readily inferred.
In a related case, the Court upheld a conviction involving a newlywed who created a disturbance that spilled from the parking lot of a hotel into the area outside a mini-mart and gas station in the middle of the night. When a police officer drove up to the hotel, which was situated in a quiet village, she found the defendant yelling and waving his arms at his bride, who was seated on a curb weeping while still in full wedding attire. In the presence of the officer, the defendant issued a stream of obscenities at his wife in a loud, aggressive and threatening tone. He then turned his attention to the police officer who had attempted to intervene, telling her that if she put her hands on him, she would be taking him to jail. After failing to heed repeated warnings to stop his disruptive behavior and calm down, the defendant was arrested for disorderly conduct. The court held that the arrest was lawful, concluding there was sufficient evidence that the defendant’s statements and conduct evidenced intent to create a risk of public harm given the late hour, the quiet nature of the surrounding community and the protracted, increasingly aggressive nature of the defendant’s vocalizations. Heroin could have been involved.
To Be Cont…