Friday, November 30, 2007

The right to hang around

A recent decision from the New York Court of Appeals confirms the right to hang around without fear of an arrest for disorderly conduct. In People v. Jones, decided on November 20, 2007, threw out a disorderly conduct conviction because the arresting officer was unable to allege that the defendant caused public inconvenience in standing at 42d Street and Seventh Avenue in Manhattan.

The New York Criminal Procedure Law requires the arresting officer to set forth a prima facie case for the alleged criminal violation in the document that triggers the arrest. For disorderly conduct cases, the officer must allege that the defendant, "with intent to cause public invonvenience, annoyance and alarm, or recklessly create a risk thereof . . . obstruct vehicular or pedestrian traffic." But in this case, all the defendant did was to stand around on the street corner and refuse to make room for other pedestrians. This happened at 2:01 a.m., by the way. As the arresting officer explained in writing that

he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] . . . deponent directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run.

This is not disorderly conduct, according to the Court of Appeals. "Nothing in the information indicates how defendant, when he stood in the middle 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 defendant here." Ergo, unless you are bothering other people, you have the right to hang around.

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