
    The People of the State of New York, Respondent, v. Raymond Pickett, Appellant.
    Court of Special Sessions of the City of New York, Appellate Part, First Department,
    December 11, 1959.
    
      Raymond Pickett, appellant in person.
    
      Daniel V. Sullivan, District Attorney, for respondent.
   Benjamin Gassman, P. J.

This appeal was submitted by the respondent on the original record. Appellant argued the appeal in person. No briefs were submitted by either party.

The defendant was convicted of disorderly conduct under subdivision 2 of section 722 of the Penal Law.

The police officer testified that on June 2, 1959, at 4:30 a.m. he observed the defendant stretched out in full length on a seat of a car in a train which was laid up for 20 minutes at the 241st Street and White Plains Road subway station. There were about 14 other passengers in that car. Defendant had his coat over his head and was apparently asleep. The officer woke up the defendant, who “ seemed to be apparently intoxicated.” Defendant told the officer that he had come from Massachusetts, had no hotel room and was using the subways to sleep. He was then arrested.

The defendant testified that he was traveling from Washington, D. C., to Winthrop, Massachusetts where he lived. He stopped in New York to see the sights and to visit various antique shops. He boarded the subway train, intending- to go to the Theresa Hotel, but fell asleep on the train and was awakened by the officer at the 241st Street station. He denied being intoxicated.

On this evidence, the Magistrate found the defendant guilty of disorderly conduct.

Although the complaint in the court below charged that the defendant 11 with intent to provoke a breach of the peace and under circumstances whereby a breach of the peace might be occasioned, did annoy and disturb passengers and others in the vicinity by loitering and lounging on the train while apparently under the influence of intoxicants ’ ’, the evidence failed to establish that the defendant annoyed or disturbed any passengers or others, or that he either committed a breach of the peace or did anything which was likely to bring about a breach of the peace. The testimony established only the defendant’s act of sleeping on a subway train.

Merely sleeping on a subway train does not, in and of itself, constitute disorderly conduct. Otherwise, many law-abiding citizens, using our transit facilities, would be violating the law. The section dealing with ‘1 disorderly conduct ” covers situations where the act of the defendant was committed ‘ ‘ with intent to provoke a breach of the peace ’ ’ or under circumstances “ whereby a breach of the peace may be occasioned ”.

“ It is most salutary that our subway and elevated trains be kept free of drunks, vagrants and loafers i:= * # However, it is even more important that the rights of every individual * * * be safeguarded ”, said the court in People v. Sustek (204 Misc. 514, 515) * * * in dismissing a complaint charging the defendant with sleeping on a train. To constitute 1 ‘ disorderly conduct ’ ’ there must be an actual or threatened breach of the peace (People v. Perry, 265 N. Y. 362, 365). “ The key phrase of the statute is ‘ breach of the peace ’ and, traditionally, that language means a violation of public order and tranquility ”. (People v. Chesnick, 302 N. Y. 58, 60.) Until such time as the Legislature makes sleeping on a train an offense, the" courts cannot make it so, desirable as it may be to keep our subway trains free of questionable characters.

The judgment should be reversed and the complaint dismissed.

Acquavella, J.

(dissenting). The disputed facts are as substantially stated in the majority opinion. The police officer also testified that defendant was stretched out the full length of his body, and occupied about 5 seats. The determination of the trial court was not contrary to the evidence, nor was it against the weight of the evidence.

To constitute disorderly conduct there need be no actual breach of the peace, nor need there be proof of an intent on the part of the defendant to cause a breach of peace. A conviction under section 722 of the Penal Law is justified if the prohibited acts are committed either with an attempt to evoke a breach of the peace or if they have a tendency to do so. (People v. Sinclair, 86 Misc. 426, 436, affd. without opinion 167 App. Div. 899; People v. Squires, 135 Misc. 214; People v. Robinson, 73 Misc. 343.)

The rule of law is well stated in People v. Sinclair (supra, pp. 436-437) viz: “ But even if the defendant did not intend to provoke a breach of peace, it is sufficient, as we have seen, to bring him within the statute if his behavior was such that by it a breach of peace might be occasioned.”

In People v. Rabey (48 N. Y. S. 2d 937, 939) the court stated: “ It is not necessary to constitute the offense of disorderly conduct that a person specifically intend to provoke a breach of the peace. That is one way in which it can be committed. It also can be committed, by the doing of any act ‘ whereby a breach of the peace may be occasioned.’

‘ ‘ It has been held that soliciting, for the purpose of prostitution, drivers of automobiles stopped for a traffic light constitutes the offense of disorderly conduct. (People v. Yergan, 164 Misc. 83.) ”

In People v. Yergan (supra, p. 85) the court stated: “ Conduct which tends to a breach of the peace is, within certain limitations, a matter of discretion on the part of the magistrate. And this must necessarily be so if law, order and ordinary decency in so large a metropolis as the city of New York are to be maintained. (People v. Lipschitz, [120 Misc. 633]; Matter of Twelve Commitments, [19 Abb. Pr. 394]; People v. Nixon, 248 N. Y. 182.)

“It is immaterial whether any breach of the peace actually occurred or whether the persons affected by the defendant’s conduct were actually annoyed. (People v. Lipschitz, supra; People v. Squires, 135 Misc. 214; People v. Sinclair, 86 id. 426; Cobb [Inferior Criminal Courts Act], p. 136 and cases therein cited.) ”

It is not incumbent upon the People to show that the public was actually “ annoyed ” (People v. Ripke, 115 N. Y. S. 2d 590 [1952]) or that the defendants intended to provoke a breach of the peace (People v. Ennis, 45 N. Y. S. 2d 446 [1943]).

The judgment of conviction is amply sustained by the proof. The decision of the trial court rested and is dependent upon that version of the disputed facts which is accepted by that court. It was incumbent upon the trier of the facts, in the case at bar, to take, consider, and evaluate the testimony of the persons present at the occurrence. The trier of the facts saw and heard the witnesses who appeared before him and, although there were contradictions as to certain details, a determination was made upon the testimony presented. It was within the province of the trial court to determine the truth from conflicting testimony and the relative weight to be accorded such testimony.

In Amend v. Hurley (293 N. Y. 587, 594) the court said: “ The advantages of the trial court who saw and heard the witnesses should be considered and, when truth hangs upon the credibility of witnesses, his decision should be given the greatest weight (Boyd v. Boyd, 252 N. Y. 422,429; York Mortgage Corp. v. Clotar Const. Corp., 254 N. Y. 128, 134; Smith v. Smith, 273 N. Y. 380, 383).”

In York Mtge. Corp. v. Clotar Constr. Corp. (254 N. Y. 128, 134) Mr. Justice Pound stated: “ In close cases, the Appellate Division should and we may properly take into consideration, in passing on the credibility of conflicting evidence, the fact that the trial judge had the advantage of seeing the witnesses. ‘ In a case so close as this, let the court of first instance decide. ’ (Boyd v. Boyd 252 N. Y. 422, 429.) ”

In Boyd v. Boyd (252 N. Y. 422, 429) Mr. Justice O’Bexen stated as follows: “Pace to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of this power of observation often proves the most accurate method of ascertaining the truth.”

In People v. Lytton (257 N. Y. 310, 312-313) the court said: “ We have examined the record with the patient care exacted by the life that is at stake. Inconsistencies and uncertainties are not lacking altogether. They are not so vital as to condemn the verdict. A question of fact remains, involving an appraisal by a jury of the credibility of witnesses, and incapable of satisfactory solution by the study of the printed page (People v. Rodawald, 177 N. Y. 408, 419, 420; People v. Taylor, 138 N. Y. 398; People v. Egnor, 175 N. Y. 419, 425). There can be no reversal of the judgment without breaking down the barriers that separate the functions of a jury from those of an appellate court ’ (People v. Arata, 255 N. Y. 374, 375).”

I therefore dissent and vote to affirm the conviction.

Dunaif, J., concurs with Gassman, P. J.; Acquavella, J., dissents in opinion.

Judgment reversed, etc.  