10 Misc. 2d 836 | New York City Magistrates' Court | 1958
The complaint herein charging disorderly conduct was dismissed on the People’s case for insufficiency of proof. According to the arresting officer, patrolman Joseph Curry, 2d division, “ on March 21, 1958, at 2 a.m. in front of 10 St. Marks place, Benito Feliciano, the defendant, committed the offense of disorderly conduct in violation of section 722, subdivision 8, of the Penal Law, in that with intent to provoke a breach of the peace and under circumstances whereby a breach of the peace might be occasioned, did loiter thereat for the purpose of committing a lewd or indecent act, in that he did approach and engage the deponent in conversation and did offer to give a drink to deponent if he would come to defendant’s house and that he would do anything for deponent that he wanted, and when asked what he meant, the defendant did place his right hand on the covered private parts of deponent, and said ‘ I’ll give you..................’ [exact language is omitted because of its obscenity]. After being placed under arrest, defendant said 'I thought you were my friend. ’ ”
A turkish bath is located at 10 St. Marks Place. The police officer testified as set forth in the complaint, amplifying that the transaction was exclusively between him and the defendant, that he had never seen the defendant before, that the whole Occurrence took ‘' approximately a minute or two ’ ’, that it was
Subdivision 8 of section 722 of the Penal Law reads:
“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:
'‘ 8. Frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness ”.
The disorderly conduct statute is concerned exclusively with the preservation of the public peace. (People v. Perry, 265 N. Y. 362; People v. Chesnick, 302 N. Y. 58; People v. Tinston, 6 Misc 2d 485.) Subdivision 8 of section 722 seems to say that as far as its purpose is concerned, one may indulge in the kind of behaviour ascribed to this defendant, that he may frequent or loiter about any public place soliciting men for the purpose of committing a crime against nature or other lewdness, provided this is not done with intent to provoke a breach of the public peace or whereby a breach of such peace may be occasioned. The statute is not aimed at sex deviation as such — ‘ ‘ degeneracy ’ \ If the suppression of the evil indicated in