People v. Smith, 21 N.Y.2d 214 (1967)

To support a conviction for disorderly conduct based on causing a crowd to collect, the evidence must sufficiently demonstrate that the defendant’s actions actually caused the crowd to collect, and that the defendant acted with the intent to provoke a breach of the peace, or that a breach of the peace would naturally result from their actions.

Summary

Smith was convicted of disorderly conduct for allegedly causing a crowd to collect after refusing a police officer’s order to move. The New York Court of Appeals reversed the conviction, holding that the evidence was insufficient to prove that Smith’s actions caused the crowd to collect or that he intended to provoke a breach of the peace. The court emphasized that the crowd had initially gathered to observe an arrest, and the evidence was unclear about the extent to which the crowd had dispersed before Smith’s interaction with the officer. The court found the testimony to be too vague to establish that Smith caused the crowd to re-collect. Moreover, the court found no evidence suggesting Smith intended to cause a breach of peace.

Facts

Following a high-speed chase, police arrested Kenneth Case in a parking lot. Officers Carlucci and Summa were at the scene. Smith and his friend Stein were in the parking lot near Stein’s car after leaving a nearby restaurant. Officer Carlucci instructed Officer Summa to disperse a crowd of 25-30 people that had gathered. Carlucci then told Smith and Stein to move, but they did not comply. An exchange occurred between Smith, Stein, and Carlucci. Smith and Stein were subsequently arrested and charged with violating subdivisions 3 and 4 of section 722 of the Penal Law (disorderly conduct).

Procedural History

Smith and Stein were found guilty of disorderly conduct by an Acting Police Justice. Smith appealed to the County Court of Westchester, which upheld the conviction, finding sufficient evidence to support a violation of subdivision 4 (causing a crowd to collect). Smith then appealed to the New York Court of Appeals by permission of an Associate Justice of the Appellate Division.

Issue(s)

Whether the evidence presented was sufficient to establish that Smith violated subdivision 4 of section 722 of the Penal Law by causing a crowd to collect with the intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned.

Holding

No, because the evidence was insufficient to prove beyond a reasonable doubt that Smith’s actions caused the crowd to collect or that Smith acted with the intent to provoke a breach of the peace.

Court’s Reasoning

The Court of Appeals reasoned that, to support a conviction under subdivision 4 of section 722, the prosecution needed to prove that Smith’s actions (1) collected those who did collect, and (2) did so with intent to provoke a breach of the peace or that a breach of the peace would naturally result from his actions. The court found the evidence lacking on both counts. The court noted the crowd had originally gathered to observe the arrest. The testimony regarding the crowd’s dispersal and re-collection was vague and indefinite. The court stated, “All that the transcript of the testimony indicates is that the crowd had started to leave in response to the order of Officer Carlucci and then came back.” There was no specific evidence as to the extent to which the crowd had dispersed or their location relative to Smith, Stein, and Carlucci at the time of the incident. Furthermore, the court found no evidence indicating that Smith’s actions were motivated by an intent to breach the peace. Smith was standing with his friend near his car in a parking lot, the prisoner was already under arrest, and first aid had been administered. The court concluded that Smith’s presence and refusal to move did not indicate an intent to occasion a breach of the peace or an act from which a breach of the peace was likely to occur. The court cited People v. Most, 171 N.Y. 423, 429, defining a breach of the peace as “a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.”