Feel Free to Stop and Smell the Roses

This week's Legal Currents column, which is published in The Daily Record, is entitled "Feel Free to Stop and Smell the Roses."  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

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Feel free to stop and smell the roses

Assistant public defenders across the state likely breathed a collective sigh of relief upon learning that police officers could no longer use Penal Law § 240.20(5) to justify the stop and arrest of a citizen engaging in the rather mundane activity of standing on a sidewalk.

No doubt assigned counsels’ fervent belief in the preser- vation of our Fourth Amendment rights was a large reason for the presumably joyful response to the New York State Court of Appeals recent decision in People v. Jones, 2007 NY Slip Op. 09070.

However, I suspect the elation was also, in part, purely self- ish. Disorderly Conduct charges and the predictable Resisting Arrest charges that follow clog the already overburdened court system. Not surprisingly, clients charged with this par- ticular Penal Code cocktail are not always the most pleasant to interact with, given that they are understandably irate after spending a night in the slammer for engaging in the  seem- ingly innocuous conduct of standing still on a sidewalk.

Thankfully, in People v. Jones, the Court of Appeals held such innocent conduct does not constitute Disorderly Conduct in violation of Penal Law § 240.20(5).

The court’s concise explanation seems self-evident:

“Failure to assert sufficient non-hearsay factual allegations is a jurisdictional defect (see People v. Alejandro, 70 NY2d at 134- 135). To meet the jurisdictional requisite to prosecute [the] defendant for disorderly conduct under Penal Law § 240.20 (5), the people were obliged to set forth a prima faciecase that [the] defendant ‘with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... obstruct[ed] vehicular or pedestrian traffic.’” den. Nothing in the information indicates how the defendant, when he stood in the mid- dle of a sidewalk at 2:01 a.m., had the intent to, or recklessly created a risk of, causing “public inconvenience, annoyance or alarm.

The conduct sought to be deterred under the statute is “considerably more serious than the apparently innocent” conduct of the defendant here (People v. Carcel, 3 NY2d 327, 331-332 [1957]). Something more than a mere inconvenience of pedestrians is  required to support the charge (Id. at 332). Otherwise, anyone who happens to stop on a sidewalk — whether to greet another, to seek directions or simply to regain     one’s bearings — would be     subject to prosecution under this statute (see People v. Nixon, 248 NY182, 185-188 [1928][Those congregating on the street display “atrociously bad manners” by “discommod[ing] some other persons” but such conduct alone does not necessarily give rise to disorderly conduct]).

Thus, as the information fails to set forth a prima facie case of disorderly conduct under Penal Law § 240.20 (5), the accusatory instrument is jurisdictionally defective and must be dismissed."

Likewise, the court wisely concluded the transactional Resisting Arrest charge filed against Jones, pursuant to Penal Law § 205.30, was improper given that an authorized arrest is a necessary element of Resisting Arrest and the underlying arrest for disorderly conduct was unlawful.

The initial elation caused by this ruling no doubt will be short lived: The Penal Code is full of vaguely worded pro- visions, and it’s only a matter of time before law enforce- ment officers discover yet another creative way to interpret a section to justify warrantless intrusion into the lives of unwitting New Yorkers obstructing pedestrian traffic.

For this very reason, my fellow New Yorkers, the window of opportunity is likely to be agonizingly short.  I urge you — congregate on the sidewalks while you can. Window shop with abandon.  Stop and converse with friends encountered on the sidewalk.

And, if you’re feeling particularly brazen, stop and engage in chitchat with a police officer — just don’t mention it was my idea. Most importantly, refrain from making “furtive” gestures.