The People v. Tony Weaver
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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The People &c.,
Respondent,
v.
Tony Weaver,
Appellant.
William G. Pixley, for appellant.
Wendy Evans Lehmann, for respondent.
GRAFFEO, J.:
The issue raised by this appeal is whether defendant's
convictions for disorderly conduct are supported by legally
sufficient evidence.
We conclude that they are and therefore
affirm the order of the Appellate Division.
At around 1:25
A.M.
on May 25, 2008, Sergeant House,
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while on routine patrol in the Village of Newark, came upon
defendant Tony Weaver yelling and waving his arms at a woman in a
parking lot outside of a hotel.
attire.
Both were dressed in wedding
When the officer stopped her vehicle, defendant walked
across the street and entered a mini-mart gas station.
The
woman, who was sitting on the curb and in tears, explained to
House that defendant and she had been married that day and had
been fighting.
The woman declined House's offer of help and
assured the officer that she would stay the night at the hotel.
As House began to drive out of the lot, she observed
defendant leave the mini-mart.
When his wife approached him,
defendant again became agitated and began yelling at her.
He
shouted at his wife to "get the f--- away from me," among a
stream of other obscenities.
After observing this encounter,
House pulled her vehicle near defendant and suggested that he
calm down and that the couple needed to take their dispute
somewhere else.
Defendant responded by telling the officer to
"shut the f--- up" because she "wasn't his mother" and could not
tell him what to do.
House described defendant's tone as "very
loud" and his demeanor as "very aggressive" and "very
threatening."
She also believed that he was intoxicated.
Sensing that the situation was escalating and that
defendant was creating a disturbance, House radioed for backup.
She then exited her vehicle and warned defendant that he needed
to stop yelling and swearing or he would be arrested for
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Defendant again loudly used profanity and
declared that "if you put your hands on me, bitch, you will be
taking me to jail."
At around this time, Sergeant Thomson
arrived in response to House's radio call.
a third warning to settle down.
House gave defendant
He refused to comply, instead
continuing to hurl obscenities at his wife and House, causing
House to conclude that defendant was not going to quiet down.
House then advised defendant that he was under arrest for
disorderly conduct.
When House directed defendant to get into
the back seat of the police vehicle, he refused and a struggle
ensued, during which defendant punched Thomson in the face and
injured House's arm.
The officers eventually arrested defendant
after Thomson used a taser to subdue him.
At the time of the incident, the hotel and mini-mart
were both open for business.
Two employees were inside the mini-
mart and at least one customer was using a gas pump during the
commotion.
In addition, two vehicles accessed a nearby ATM while
the disturbance progressed.
Following his arrest, defendant was indicted for
assault in the second degree (Penal Law § 120.05 [3]), resisting
arrest (Penal Law § 205.30) and two counts of disorderly conduct
(Penal Law § 240.20 [1], [3]).
A jury acquitted defendant of
second-degree assault but convicted him of resisting arrest and
both counts of disorderly conduct.
Defendant was sentenced to
one year for resisting arrest and 15 days for each of the
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disorderly conduct convictions, all to be served concurrently.
The Appellate Division affirmed (68 AD3d 1781 [4th Dept 2009]),
and a Judge of this Court granted defendant leave to appeal (14
NY3d 807 [2010]).
Defendant argues that the evidence was legally
insufficient to sustain the disorderly conduct convictions.
He
maintains that his behavior did not have the requisite potential
or actual ramifications related to a public disturbance because
there was no proof that the altercation with his wife and the
police officers attracted attention from or annoyed any
bystanders.
The People respond that the evidence, viewed in the
light most favorable to the prosecution, was legally sufficient
to establish defendant's guilt beyond a reasonable doubt.
As relevant here, a person is guilty of disorderly
conduct when
"with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a
risk thereof:
"1. He engages in fighting or in violent,
tumultuous or threatening behavior; or
. . .
"3. In a public place, he uses abusive or
obscene language, or makes an obscene
gesture" (Penal Law § 240.20 [1], [3]).
Defendant acknowledges that there was ample proof that he
committed the conduct described in subdivisions (1) and (3), but
claims that he did not recklessly create a risk of public
inconvenience, annoyance or alarm because the confrontation was
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not public; instead it was merely a private encounter.
It is well established that "the disruptive behavior
proscribed by our disorderly conduct statute be of public rather
than individual dimension" (People v Munafo, 50 NY2d 326, 331
[1980]).
As we have explained:
"[D]isorderly conduct is a statutory
creation. Intended to include in the main
various forms of misconduct which at common
law would often be prosecuted as public
nuisances . . . [a] common thread that ran
through almost all of this legislation was a
desire to deter breaches of the peace or,
more specifically, of the community's safety,
health or morals. And, although it has
always been difficult to essay any precise
definition of breach of the peace, this court
has equated that term with public
inconvenience, annoyance or alarm, the
governing phrase of our current disorderly
conduct statute" (People v Tichenor, 89 NY2d
769, 773-774 [1997] [internal quotation
marks, citation and emphasis omitted], cert
denied sub nom Tichenor v New York, 522 US
918 [1997]).
Consequently, a person may be guilty of disorderly
conduct only when the situation extends beyond the exchange
between the individual disputants to a point where it becomes "a
potential or immediate public problem" (Munafo, 50 NY2d at 331).
In assessing whether an act carries public ramifications,
relevant factors to consider are the time and place of the
episode under scrutiny; the nature and character of the conduct;
the number of other people in the vicinity; whether they are
drawn to the disturbance and, if so, the nature and number of
those attracted; and any other relevant circumstances (see id.;
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People v Pritchard, 27 NY2d 246, 248-249 [1970]).
And, contrary to defendant's position, there is no per
se requirement that members of the public must be involved or
react to the incident.
Rather, the attention generated by a
defendant's activities, or the lack thereof, is a relevant factor
to be considered in the public dimension calculus.
We have made
clear that a defendant may be guilty of disorderly conduct
regardless of whether the action results in public inconvenience,
annoyance or alarm if the conduct recklessly creates a risk of
such public disruption (see People v Todaro, 26 NY2d 325, 329
[1970] [stating that the defendant's "emphasis on the contention
that the fact of disorder was not established, to the exclusion
of the risk that it might come to pass, ignores the very terms of
the statute itself" (emphasis omitted)]; People v Kennedy, 19
NY2d 761, 762 [1967] ["It is enough that disorder was threatened
by defendant's conduct"]).
Here, the commotion occurred during the early morning
hours when peace and quiet would be expected in this small
village.
The incident began in a public parking lot adjacent to
a hotel and extended into a public street near the hotel and
mini-mart, both of which were open for business.
Although there
was no testimony at trial from onlookers, there was evidence that
a number of people were in the immediate vicinity, whether
pumping gas, using the ATM or working at the mini-mart.
It can
also reasonably be inferred that guests were sleeping in the
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nearby hotel.
Moreover, over a short time period, defendant's conduct
escalated into a very vocal and aggressive confrontation.
House
warned defendant on three separate occasions to cease his conduct
and leave the area.
Rather than heed these warnings, defendant
became increasingly agitated and belligerent, repeatedly shouting
obscenities at his wife and the officer.
After the final
warning, House determined that defendant was not going to cease
creating a disturbance and effectuated his arrest with the help
of Thomson.
On these facts, we believe that the jury had
sufficient evidence to "weigh the whole incident" (Tichenor, 89
NY2d at 776) and logically conclude beyond a reasonable doubt
that defendant recklessly created a risk of public inconvenience,
annoyance or alarm within the meaning of the statute.
In other
words, based on the events leading up to defendant's arrest,
there is a valid line of reasoning and permissible inferences
from which a jury could have found that his conduct reached the
point of "a potential or immediate public problem" (Munafo, 50
NY2d at 331).
Defendant's remaining contentions are either without
merit or academic.
Accordingly, the order of the Appellate Division should
be affirmed.
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Order affirmed. Opinion by Judge Graffeo. Chief Judge Lippman
and Judges Ciparick, Read, Smith, Pigott and Jones concur.
Decided February 10, 2011
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