No Probable Cause for Disorderly Conduct Arrest/Defendant Was Standing in Front of a Store with Three Others All of Whom Refused Police Officer’s Request to Move

The Court of Appeals determined the presence of three reputed gang members in front of a store, one of whom was partially blocking the door, was not enough to support a disorderly conduct charge.  Evidence seized as a result of arrest should therefore have been suppressed:

The applicable statute is Penal Law § 240.20 (6), which says:”A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:. . . .”6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse;”

We have made clear that evidence of actual or threatened public harm (“inconvenience, annoyance or alarm”) is a necessary element of a valid disorderly conduct charge … . Here, the evidence was insufficient to provide the arresting officer with probable cause to believe that defendant either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk of those consequences. According to the officer’s testimony at the suppression hearing, defendant stood with three other young men, reputed to be gang members, on a street corner, and the four refused to move when asked to do so by the police. The only evidence of any possible impact on the public resulting from their presence was the officer’s testimony that one of defendant’s companions “was partially blocking” the entrance to a store by standing in front of it.  Defendant and the other two men were close to the door, but not in front of it. There is no evidence that anyone trying to enter or leave the store was actually obstructed. This was not sufficient to satisfy the public harm element of the statute.  People v Johnson, 2014 NY Slip Op 02217, CtApp 4-1-14