People v. Mehdi

277 N.E.2d 673, 29 N.Y.2d 824, 327 N.Y.S.2d 659, 1971 N.Y. LEXIS 937

Opinions

Memorandum.

The order of the Appellate Term should be reversed and the complaint dismissed on the ground that the evidence at the trial failed to establish, beyond a reasonable doubt, that the defendants were guilty of disorderly conduct under subdivision 7 of section 240.20 of the Penal Law; more specifically, there is absent from the record the essential quantum of proof that the defendants, ‘ ‘ with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof * * * create [d] a hazardous or physically offensive condition ” by their burning of the flag. Intentional or reckless creation of a hazard is not established merely by the subjective conclusion of the police officer that there was a crowd and restraining barriers or that a small fire might have caused or threatened injury to relatively passive bystanders or sympathizers.

In this view, we do not reach the constitutional argument advanced by the defendants.