3 N.Y.2d 327 | NY | 1957
Lead Opinion
Defendants were convicted of disorderly conduct (Penal Law, §722) in the Magistrates’ Court of the City of New York. Leave to appeal here has been granted by a Judge
It should be noted at the outset that nothing turns on the agreements executed between the United States and the United Nations concerning the maintenance and police protection of the United Nations headquarters, referred to in the briefs before us and commented upon by the Magistrate below. The case arises solely under New York law. The arrest was made by a New York City policeman on property concededly within his jurisdiction and the conviction was under section 722 of the Penal Law. No suggestion was made by the Magistrate that the conviction was bottomed upon any other agreement or provision of law nor is it so contended by the People here. Accordingly, our inquiry is directed to the sufficiency of the convictions under section 722. In so doing we pass the constitutional objections made by appellants for the reasons set forth. This is consonant with the firm policy of the law not to decide constitutional questions unless their disposition is necessary to the appeal (Lynbrook Gardens v. Ullmann, 291 N. Y. 472; Matter of Peters v. New York City Housing Auth., 307 N. Y. 519, 527-528).
The material facts were virtually undisputed. The arresting officer, witness for the People, testified that at the' time mentioned in the complaint the defendant Lydia Collazo was walking back and forth, covering a distance of some 20 feet
Although the defendants were specifically charged with a violation of subdivision 2 of section 722, it is settled that a judgment of conviction in a case such as this will be affirmed if the evidence establishes a violation of any of the subdivisions of that section (People v. Peiner, 300 N. Y. 391, 398; People v. Hipple, 263 N. Y. 242, 244; People v. Hussock, 6 Misc 2d 182, cert, denied 312 U. S. 659; People v. Kunz, 205 Misc. 316, 321). In light of this, the allegations of the complaint and the proof adduced require a consideration of two of the subdivisions. The pertinent provisions state: Ҥ 722. Disorderly Conduct. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: * * *
“ 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others;
“ 3. Congregates with others on a public street and refuses to move on when ordered by the police ”.
It is abundantly clear that the conduct sought to be deterred by subdivision 2 above is considerably more serious than the apparently innocent and, so far as appears from the record, inoffensive conduct of the defendants here. The common-law definition of ‘ ‘ breach of peace ’ ’, though not controlling, is helpful in ascertaining the nature of the acts proscribed by the
Accordingly, the convictions should be reversed and the complaint dismissed.
Dissenting Opinion
I cannot agree that there was insufficient evidence to support the conviction. Section 722 of the Penal Law provides that any person who acts ‘ ‘ in such a
The arresting officer testified that on a holiday — Washington’s birthday — the defendants were by their conduct in distributing leaflets “blocking the pedestrians’ right of way” and “ interfere[ing] with the pedestrians ” at the visitors’ entrance to the United Nations at the time crowds of people were going into this entrance. One of the defendants conceded that every five or ten minutes a crowd would accumulate from a bus. When the police officer asked the defendants simply to move across the street, they refused.
The judgments should be affirmed.
Conway, Ch. J., Desmond, Dye and Fuld, JJ., concur with Burke, J.; Froessel, J., dissents in an opinion in which Van Voorhis, J., concurs.
Judgments reversed and complaint dismissed.