
    The People of the State of New York, Respondent, v. David J. Pritchard, Appellant.
    Submitted October 7, 1970;
    decided November 19, 1970.
    
      
      Samuel J. Castellino for appellant.
    
      John F. O’Mara, District Attorney (D. Bruce Crew, III of counsel), for respondent.
   Gibson, J.

The appeal is concerned with the application of the new disorderly conduct statute, enacted as section 240.20 of the revised Penal Law (L. 1965, ch. 1030, eff. Sept. 1, 1967), providing, so far as here pertinent, that: “ 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 ’ ’. The defendant was convicted of a violation of subdivision 1 of the section, after a trial before a Town Justice, without a jury, and his conviction was affirmed upon appeal to the County Court of Chemung County.

The complainant and the People’s only witness was Donald J. Draxler who said that he was a Deputy Sheriff but at the time of the incident in question was off duty and “ moonlighting ” as an employee of an establishment operated by his brother, which he described as ‘‘ a teenage dance club ’ ’ known as the Hullabaloo Club and ‘ ‘ catering strictly to youths between the ages of 14 and 21 ’ ’, who were admitted upon payment of a charge of $1.25. The alleged violation occurred at about 9:45 in the evening, during the dance band’s break, while many of those present were congregated in the so-called smoking area. Draxler went there from his post at the front door, some 35 to 40 feet away, when told that a fight was in progress. Arriving, he saw two boys ‘ ‘ on the floor rolling around and striking at each other * * * [t]heir arms and legs * * * flying.” On the basis of this observation he arrested, charged and arraigned both boys and subsequently, as has been noted, testified on appellant’s trial as the People’s only witness. The “ scuffle ”, as Draxler termed it in his information, was short-lived and there was no evidence of any disturbance or disorder among the others present or any indication that in gathering about the protagonists they were moved by anything more than curiosity or whatever entertainment value the incident afforded.

The defendant, then 17 years old, testified without contradiction, to the aggressive actions of the other boy, James De Haas, in pushing him as he passed by and in then addressing thoroughly provocative epithets to him. The defendant, having testified that De Haas first pushed him, was asked by the prosecutor whether he could “ honestly say who threw the first punch” and said that he could not. His witness said that defendant did. The complainant saw only that ''arms and legs were flying.”

Upon this record, it could be found that the scuffle on the floor was the instant and perhaps reflexive reaction of defendant to De Haas’ physical and vituperative provocation, thus, perhaps, excluding any intent other than that of retaliation; but, in any event, the courts below were not warranted, upon the scanty proof before them, in finding that defendant acted ‘ ‘ with intent to cause public inconvenience, annoyance or alarm ’ ’ or that he “recklessly creat[ed] a risk thereof” (Penal Law, § 240.20). The proscription of the statute, “unlike the former statute (§ 722), is limited to that type of conduct which involves a genuine intent or tendency to provoke a ' breach of the peace ’ or, to use the revision’s more modern phraseology, ‘ to cause public inconvenience, annoyance or alarm ’ (cf. A. L. I. Model Penal Code § 250.2).” (Practice Commentary by Richard G. Denzer and Peter McQuillan, McKinney’s Cons. Laws of N. Y., Book 39, Penal Law, § 240.20, p. 128.) The case before us is within the pattern of People v. Perry (265 N. Y. 362, 365), in which onlookers gathered "to gratify curiosity or a desire for amusement ”, and, as respects the curiosity manifested, is not unlike that of People v. Smith (19 N Y 2d 212, 215), in which, although defendant indulged in loud talk and disobeyed a policeman’s order to move on, this court considered that the crowd gathered merely “ to view the arrest and apprehension ” of a miscreant; and the factual situation here is far removed from that in People v. Todaro (26 N Y 2d 325) and the ugly police confrontation there existent, with the threats and obscenities vented by that defendant from a particularly notorious street corner.

Failing, as it does, to demonstrate conscious disruptive intent, this record is also devoid of proof or inference of recklessness such as to engender risk of disruption or disorder, within the alternative provision of the statute. This purely personal clash and momentary teenage flare-up did not contain the seeds of such a crowd reaction nor did it attain the degree of gravity warranting criminal prosecution under the statute; and, of course, acquired no added weight when prosecuted by a sometime law officer then engaged in a private enterprise.

The judgment of the County Court should be reversed, the information dismissed and the fine remitted.

Jasen, J. (dissenting).

The question presented on this appeal is whether the evidence is sufficient to support defendant’s conviction for disorderly conduct in violation of section 240.20 of the revised Penal Law.

At the time of the incident at the dance hall — a place of public assembly — there were about 75 to 100 youths gathered in a ‘ ‘ tight ’ ’ group in the immediate vicinity of the fight between the defendant and De Haas. Loud voices of “ fight, fight ” were heard in the dance hall, resulting in additional persons’ running towards the fight area.

In my opinion, the evidence was more than ample to support defendant’s conviction for violating section 240.20 of the Penal Law, which provides, in pertinent part, that “ [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 ’ ’.

To sustain the prosecution in this case, it was necessary for the People to establish beyond a reasonable doubt merely that the defendant engaged in fighting in a public place and caused public inconvenience, annoyance or alarm, or recklessly created a risk thereof. It is not necessary for defendant’s acts actually to cause a disturbance of public order, but only to create a likelihood or risk of producing such a disruption. As we recently stated in People v. Todaro (26 N Y 2d 325, 329): 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.” “ It is enough that disorder was threatened by defendant’s conduct.” (People v. Kennedy, 19 N Y 2d 761, 762.) (See, also, People v. Most, 171 N. Y. 423, 429; People v. Hippie, 263 N. Y. 242, 244.)

It is inferable from the evidence presented at the trial that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that “ public inconvenience, annoyance or alarm” would result from his fighting. For it may be expected that in the light of human experience, and particularly in tune with the life about us, such conduct of the defendant, involved in a fight in a teen-age dance club, crowded with youths, is likely to provoke youthful passions, resulting in public disorder.

The majority, in holding the conduct of the defendant lacking of recklessness such as to engender risk of public disorder, fails to consider the underlying purpose of section 240.20 (subd. 1).

The former disorderly conduct statute (Penal Law, § 722) included acts, such as begging and loitering for immoral purposes, that did not have a tendency to breach the peace. The revisers of the new statute (Penal Law, § 240.20) excluded these acts and significantly narrowed the law to include only those acts tending to disrupt public order, or, to use their modern phraseology, ‘‘ to cause public inconvenience, annoyance or alarm ’ ’. Among those acts enumerated by the revisers as having such tendency, is “ fighting in public ”. (Proposed New York Penal Law, Commission Staff Notes, p. 388.)

Cognizant of the risks to public order that are inherent to fighting in public, the Legislature clearly indicated its intent to specifically proscribe such conduct. The narrow construction given to section 240.20 by the majority has sanctioned unlawful conduct specifically prohibited by the statute. It seems to me that if the conduct of the defendant is not a violation of the statute, it would be difficult to imagine such a violation, short of an actual riot.

Moreover, the majority’s reliance on People v. Perry (265 N. Y. 362) is misplaced. In that case, the three defendants who were convicted of disorderly conduct had been fighting in a restaurant owned by the defendant Perry. At the time the fight started (four o’clock in the morning), the restaurant was closed to the public, and the only other person present, besides the three engaged in fighting, was the cook. In addition to these people, there were three persons who watched the fight from the street in front of the restaurant. In reversing the convictions, we held that acts charged as disorderly conduct must be public in character, and such as actually disturb or threaten to disturb the public peace and quiet. Perry has been consistently followed in a long line of decisions in which we reversed convictions of disorderly conduct where the defendant’s misconduct occurred in a private dwelling where no members of the public were present. (People v. Chesnick, 302 N. Y. 58 [shouting in a private dwelling]; People v. Monnier, 280 N. Y. 77 [abusive language in course of a phone conversation]; People v. Oczko, 272 N. Y. 604 [assault by intoxicated defendant on his wife in their own home]; People v. McCauliff, 267 N. Y. 581 [assault by defendant on his wife in their home].) The factual setting in the case before us is clearly distinguishable from Perry.

The worst of the matter is that the majority’s analysis and disposition leaves the dance hall owner without an effective sanction against those who might create or threaten disorder, except to oust them, perhaps inviting a chain of assaults or disorders. Part of the statute is a preventive law which purports to control a scuffle before it becomes a riot — small or large. This is the very essence of the breach of the public peace to which the disorderly conduct statutes have been aimed since time immemorial.

Accordingly, the judgment of conviction should be affirmed.

Chief Judge Fuld and Judges Burke and Bergan concur with Judge Gibson ; Judge Jasen dissents and votes to affirm in a separate opinion in which Judges Scileppi and Breitel concur.

Judgment reversed, etc.  