People v. Cianci (Richard)
This text of 73 Misc. 3d 134(A) (People v. Cianci (Richard)) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
People v Cianci (2021 NY Slip Op 51027(U)) [*1]
| People v Cianci (Richard) |
| 2021 NY Slip Op 51027(U) [73 Misc 3d 134(A)] |
| Decided on October 22, 2021 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on October 22, 2021
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1378 RI CR
against
Richard Cianci, Appellant.
New York City Legal Aid Society (Steven J. Miraglia of counsel), for appellant. Richmond County District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Raja Rajeswari, J.), rendered May 31, 2018. The judgment convicted defendant, after a nonjury trial, of disorderly conduct, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Following a nonjury trial, defendant was convicted of disorderly conduct (Penal Law § 240.20 [5]) and was sentenced to a conditional discharge. On appeal, defendant contends that the accusatory instrument was jurisdictionally defective; that the evidence was legally insufficient; and that the verdict was against the weight of the evidence.
In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Jones, 9 NY3d 259, 261-263 [2007]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]). The failure to meet the above requirements is jurisdictional and can be asserted at any time (see People v Casey, 95 NY2d at 363; People v Alejandro, 70 NY2d at 135), with the exception of the nonhearsay requirement, which, insofar as is relevant to this appeal, is waived if it is not timely raised by motion in the trial court (see People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d at 364-365).
Penal Law § 240.20 (5) 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 . . . He obstructs vehicular or pedestrian traffic." For pleading purposes, the requisite mental state may be alleged on the basis of a logical implication of the act itself or upon the surrounding circumstances (see e.g. People v Bracey, 41 NY2d 296, 301 [1977]; People v McGee, 204 AD2d 353 [1994]; People v Bishop, 41 Misc 3d 144[A], 2013 NY Slip Op 52063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As this court noted in People v Villegas (54 Misc 3d 137[A], 2017 NY Slip Op 50134[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]):
"Critical to a charge of disorderly conduct is a finding that the defendant's disruptive behavior was of a public rather than an individual dimension (see People v Baker, 20 NY3d 354, 359 [2013]; People v Weaver, 16 NY3d 123, 127 [2011]). Consequently, 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' (People v Munafo, 50 NY2d 326, 331 [1980]). The risk of public disorder does not have to be realized, but the circumstances must be such that defendant's intent to create such a threat, or reckless disregard thereof, can be readily inferred (see Baker, 20 NY3d at 360; Weaver, 16 NY3d at 128; People v Todaro, 26 NY2d 325, 329 [1970]; People v Kennedy, 19 NY2d 761, 762 [1967] ['It is enough that disorder was threatened by defendant's conduct'])".
Defendant argues that the information is facially insufficient because the factual allegations do not show that he intended to create, or recklessly disregarded the risk of creating, public inconvenience, annoyance or alarm, and that his alleged actions caused no "public" harm. The relevant factual portions of the information state that, on New Year's day 2017, at about 3:50 p.m., in the vicinity of Richmond Road and New Dorp Lane in Staten Island, New York, the deponent police officer "observed defendant riding a bicycle in the above intersection, preventing motor vehicles from driving in the roadway . . . defendant rode a bicycle in front of deponent's marked police motor vehicle, cursing and yelling at deponent, stating in sum and substance, YOU'RE NOT GOING TO DO SHIT, YOU F[. . . .] PUSSIES, causing deponent to have to brake several times." We find that these allegations adequately show that defendant obstructed vehicular traffic of the driving public at large, not just of the deponent police officer, by which defendant intended to create, or recklessly disregarded the risk of creating, public inconvenience, annoyance or alarm. As the allegations of fact are of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Jones, 9 NY3d at 261-263; People v Casey, 95 NY2d 354; People v Alejandro, 70 NY2d 133), the information is not jurisdictionally defective.
Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review since, at trial, he failed to make the specific arguments he now raises on appeal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]), and we decline to consider this contention in the [*2]interest of justice. Nevertheless, since there is no preservation requirement associated with defendant's contention that the verdict was against the weight of the evidence, this court must necessarily determine as part of its weight of the evidence review whether all of the elements of disorderly conduct were proven beyond a reasonable doubt in this nonjury trial (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Thiel, 134 AD3d 1237 [2015]). Since a different verdict would not have been unreasonable in the case at bar (see People v Zephyrin, 52 AD3d 543[2008]), we "must, like the trier of fact below, 'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]).
"[A] defendant may be guilty of disorderly conduct regardless of whether the action results in public inconvenience, annoyance or alarm if the conduct recklessly creates a risk of such public disruption" (People v Weaver, 16 NY3d at 128; see also People v Todaro, 26 NY2d at 329; People v Kennedy, 19 NY2d at 762; People v Moye, 90 AD3d 472, 472 [2011]). The evidence adduced at trial showed that defendant, while riding his bicycle on a public roadway, zigzagged his bicycle from the sidewalk to the roadway in which numerous vehicles were located.
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