50 N.Y.2d 326 | NY | 1980
OPINION OF THE COURT
A Justice of the Town Court of the Town of Russell found the defendant James Munafo, Sr., guilty of the charges set out in two informations, one sounding in trespass (Penal Law, § 140.05) and the other in disorderly conduct (Penal Law, § 240.20). The County Court of St. Lawrence County has since affirmed. The narrow issue on which the present appeal turns is whether the evidence was sufficient to establish the offense pleaded in each accusatory instrument. We are convinced it was not.
This case may be said to be a by-product of the distraught state into which the defendant was precipitated when the
Without condoning defendant’s conduct, and without reflecting on what other measures, civil or criminal, may have been legally supportable in these circumstances to prevent unwarranted interference with the authority’s use of its right of way, but with due regard for the principle that penal responsibility cannot be extended beyond the scope of a charge lodged and proved, we are convinced that the convictions cannot stand. Our reasons follow.
First, as to the trespass, this is a matter that is no stranger to the history of either civil or criminal law. In the setting of a civil action, broadly speaking, trespass includes an impingement on the right to possession (e.g., Oatka Cemetary Assn. v Cazeau, 242 App Div 415). Under prevailing criminal statutes, however, it has been more narrowly reformulated to cover only the conduct of a person who "knowingly enters or remains unlawfully” on "any real property”, i.e., unless he is "licensed or privileged to do so” (Penal Law, § 140.00, subds 1, 5; § 140.05).
Surely the defendant was at least so "privileged”. While
It would be incongruous to conclude, absent some positive indication of such a design, that the Legislature intended to brush aside these established real property concepts, not only to interdict the grantor of an easement from treading upon his property, but to punish that exercise of his retained right as criminal. Yet there is not the slightest hint that that was its purpose (see, generally, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 140.00, pp 14-17). If anything, subdivision 5 of section 140.00 of the Penal Law, by expressly placing in the hands of "the owner” the power to convert certain lawful entries on real property into unlawful ones, suggests quite the contrary.
Focusing now on the accusation of disorderly conduct, we enter an area of our criminal law which, unlike trespass, is not bottomed on deep-rooted principles. Disorderly conduct is a statutory creation. Intended to include in the main various forms of misconduct which at common law would often be
Because of this catchall character, a melange of offenses, some expressly stated in the statute and others not, came to be prosecuted under its banner and, because generally classified as below a misdemeanor, were often disposed of with dispatch so summary as to invite constitutional attack. But, however wide ranging its application, a common thread that ran through almost all of this legislation was a desire to deter breaches of the peace or, more specifically, of the community’s safety, health or morals. (People v Barbera, 127 Misc 864.) And, although it has always been difficult to essay any precise definition of "breach of the peace” (see 2 Wharton, Criminal Law and Procedure [Anderson ed, 1957], § 803), this court has equated that term with "public inconvenience, annoyance or alarm”, the governing phrase of our current disorderly conduct statute (Penal Law, § 240.20, L 1965, ch 1030; People v Pritchard, 27 NY2d 246, 248 [majority opn], 250 [dissenting opn]).
Indeed, a requirement that the disruptive behavior proscribed by our disorderly conduct statute be of public rather than individual dimension was evolving even before subdivision 2 of section 722 of the former Penal Law was replaced by the present section 240.20 (People v Szepansky, 25 Misc 2d 239 [Gabrielli, J.]; see, also, People v Chesnick, 302 NY 58, 60-61). The clear aim was to reserve the disorderly conduct statute for situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem. In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny (see People v Phillips, 245 NY 401, 402-403; People v Canner, 88 Misc 2d 85, affd on opn below 40 NY2d 886).
In the case before us, it is undisputed that Munafo’s actions were undertaken in broad daylight on a secluded stretch of his own property far removed from any public thoroughfare or business or residential area. Relative to the
Moreover, since the accusatory instrument pointed to subdivision 5 as an implicated portion of section 240.20, we observe that, especially on this private way, there hardly could be, and definitely was not, any obstruction of passage, vehicular or pedestrian, of the public at large (cf. People v Carcel, 3 NY2d 327, 333). Nor is defendant’s mere disobedience of the police order to move culpable since he was not part of a "congregate[d]” crowd directed to "disperse” (subd 6).
In all, a case of disorderly conduct was not made out beyond a reasonable doubt (People v Jemzura, 29 NY2d 590).
Accordingly, the order of the County Court, St. Lawrence County, should be reversed and the informations dismissed.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.
Order reversed and the informations dismissed.
Subdivision 5 of section 140.00 of the Penal Law reads as follows: " 'Enter or remain unlawfully.’ A person 'enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.”