People v. Alvarez

66 Misc. 2d 205, 319 N.Y.S.2d 1017, 1971 N.Y. Misc. LEXIS 1904

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 25, 1971
• Status: Published

Opinion

Per Curiam.

The District Attorney candidly concedes on this appeal that the conviction for disorderly conduct should be reversed because it may not be considered included in the violation of harassment, with which defendant was charged. Disorderly conduct requires proof of an element — “ intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof” (Penal Law, § 240.20) — which is not required to establish harassment —■ ‘ ‘ intent to harass, annoy or alarm another person ” (Penal Law, § 240.25). Since such additional element or fact must be shown in a case of disorderly conduct, it may not be considered a lesser included offense of harassment. The record supports the finding of guilt on the charge of obstructing traffic.

The judgment of conviction of obstructing traffic should be affirmed. The judgment of conviction of disorderly conduct should be reversed on the law, complaint as to the charge of harassment dismissed, and fine in the amount of $25 remitted.

Concur — Lupiano, J. P., Street and Gold, JJ.

Judgment of conviction of obstructing traffic affirmed.

Judgment of conviction of disorderly conduct reversed, etc.