Opinion
No. 2010–1529 OR CR. No. 2010–2066 OR CR. No. 2010–2068 OR CR. No. 2010–2069 OR CR. No. 2010–2070 OR CR. No. 2010–2071 OR CR.
2011-12-27
The PEOPLE of the State of New York, Respondent, v. Tarak KAUFF, Appellant. The People of the State of New York, Respondent, Beverly Rice, Appellant. The People of the State of New York, Respondent, Richard Marini, Appellant. The People of the State of New York, Respondent, Elaine Brower, Appellant. The People of the State of New York, Respondent, Allison Beth Levy, Appellant. The People of the State of New York, Respondent, Matthis Chiroux, Appellant.
Present NICOLAI, P.J., LaCAVA and IANNACCI, JJ.
Appeals from six judgments of the Justice Court of the Town of Highlands, Orange County (Eric A. Stewart, J.), rendered June 1, 2010. The judgments convicted defendants, after a joint nonjury trial, of disorderly conduct in violation of Penal Law § 240.20(5) and (6).
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the judgments are modified, on the facts, by vacating the convictions of disorderly conduct in violation of Penal Law § 240.20(5) and by dismissing those charges; as so modified, the judgments of conviction are affirmed.
These six criminal actions arose out of a protest that occurred on December 1, 2009 at the entrance gate to West Point Military Academy. The following facts were undisputed at the nonjury trial. On the night of the protest, the police department had blocked off three traffic lanes for the demonstration and kept the two remaining lanes open for vehicular traffic. Shortly after the protesters congregated at the gate, defendants entered one of the lanes dedicated to vehicular traffic and sat down in the middle of the roadway. The Chief of Police ordered defendants to leave the lane, advising that if they did not comply, they would be subject to arrest. Defendants refused to move, and were arrested and charged with disorderly conduct by obstructing vehicular traffic, in violation of Penal Law § 240.20(5), and by refusing to comply with a lawful order of the police to disperse, in violation of Penal Law § 240.20(6).
Following the trial, each defendant was convicted of the charged offenses.
Defendants' contentions that there was insufficient evidence at trial to show: (1) that defendants had obstructed vehicular traffic and (2) that the police order that they disperse from the roadway was lawful are not preserved, as no objections were made on these grounds at trial ( seeCPL 470.05[2]; People v. Gray, 86 N.Y.2d 10 [1995] ).
Upon the exercise of our factual review power, we find that the verdicts convicting defendants of violating Penal Law § 240.20(5) were against the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348–349 [2007];People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ). There is no indication in the record that defendants actually blocked vehicular traffic, a required element of Penal Law § 240.20(5) ( see People v. Salazar, 13 Misc.3d 120 [App Term, 9th & 10th Jud Dists 2006], citing Provost v. City of Newburgh, 262 F3d 146, 157 [2001] ). No evidence was offered that there were vehicles present at the time of the alleged offense. In fact, not only did defendants testify that no vehicles had been present, but the People's only witness, the Chief of Police, also testified that he had not observed any vehicles attempting to use the roadway while defendants had been there.
With respect to the convictions of violating Penal Law § 240.20(6), we find that the circumstances of defendants' arrest provided a sufficient basis for the trier of fact to infer that defendants, by their refusal to disperse from the active roadway, had intended to cause a public inconvenience by blocking the roadway ( see People v. Giannizzero, 209 A.D.2d 635, 636 [1994],citing People v. Smith, 79 N.Y.2d 309, 315 [1992] ). We also find that the convictions of violating Penal Law § 240.20(6) were not against the weight of the evidence. Defendants remained in the roadway, which was dedicated to vehicular traffic, after being directed by the Chief of Police to leave, and it is beyond dispute that a police officer's demand for a pedestrian to vacate an active roadway is a lawful order.
Accordingly, the judgments are modified by vacating the convictions of disorderly conduct in violation of Penal Law § 240.20(5) and by dismissing those charges.