PEOPLE , & C., RESPONDENT, v. NOEL TICHENOR, APPELLANT.
89 N.Y.2d 769, 680 N.E.2d 606, 658 N.Y.S.2d 233 (1997).
May 8, 1997
CoCt No. 60 (1997 NY Int. 74)
Decided May 8, 1997
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Louise M. Harding, for Appellant.
Nicholas E. Tishler, for Respondent.
BELLACOSA, J.:
On this appeal, defendant challenges his affirmed conviction and the
constitutionality of New York's disorderly conduct statute (Penal Law
§240.20(3)) under the State and Federal Constitutions. This case
arises out of an incident that occurred in September, 1993, in front
of and then inside a bar in downtown Saratoga Springs.
The evidence, viewed in the light most favorable to the People as we
must in the procedural posture of this affirmed conviction, is as
follows: A police officer walking a street beat observed Tichenor
standing outside the bar just after midnight. As the officer passed by
the bar, Tichenor uttered an obscenity at the officer; he also spat on
the ground towards the officer's feet. The officer, who was about
eight feet from Tichenor, turned and moved towards the individual.
Tichenor then proceeded to shove the officer while uttering further
obscenities. The officer testified that he did not observe anyone else
on the street at that point in time.
Following this physical confrontation, the officer decided to arrest
Tichenor and moved towards him, but Tichenor then attempted to reenter
the bar. The officer put his hand on Tichenor's elbow and said, "Sir,
step out here." Tichenor initially complied. While still holding onto
Tichenor with his left hand, the officer reached for his handcuffs
with his right hand. As this was occurring, a group of people gathered
in the doorway of the bar, with some screaming "Leave him alone,"
adding various epithets. The patrol officer then radioed for
assistance. Tichenor pulled away from the officer's grasp and moved
into the bar. The officer followed him inside, and when he caught up
with Tichenor and attempted to arrest him, a scuffle ensued with bar
patrons joining the fray. The police who responded to the officer's
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
Louise M. Harding, for Appellant.
Nicholas E. Tishler, for Respondent.
defendant challenges his affirmed conviction and the constitutionality of New York's
The evidence, viewed in the light most favorable to the People as we must in the procedural
The officer followed him inside, and when he caught up with Tichenor and attempted to arrest
Tichenor was charged with disorderly conduct, harassment in the second degree and resisting
Following a jury trial in the Saratoga Springs City Court, he was convicted of disorderly
We now affirm the order upholding the conviction and hold that the disorderly conduct statute
He particularly asserts that People v Dietze (75 NY2d 47) compels a ruling in his favor.
A person is guilty of disorderly conduct when, with intent to cause public inconvenience,
In a public place, he uses abusive or obscene language, or makes an obscene gesture
Before that, we upheld the constitutionality of the predecessor, similarly-worded disorderly
There, defendant was convicted of disorderly conduct as a result of delivering a provocative
In upholding the constitutionality of the former disorderly conduct statute there, this Court
Rather, it is directed at words and utterances coupled with an intent to create a risk of
Defendant, again resorting to Dietze, argues that the statute is unconstitutional as applied
Although the arresting officer testified that he did not initially observe any other persons
From all this evidence, the jury could reasonably infer that the defendant instigated the
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