AD4 orders dated March 25, 2011, affirming two judgments of conviction. Decisions below: 82 AD3d 1656, 1657; 919 NYS2d 428, 457. Smith, J., granted leave December 21, 2011.

ISSUE PRESENTED: Whether there was probable cause to arrest the defendant for disorderly conduct (P.L. 240.20[3] for using foul language in public to criticize the conduct of a police officer. (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)

Issue before the Court: Whether a person's cursing at a police officer and accusing him of harassment poses a risk of public harm to support a disorderly conduct arrest.

Held: The significance of the intent to create or recklessly invite the risk of public harm is critical to support a disorderly conduct conviction.  Applying a multi-factor test it had previously set forth, the Court ruled that there was no record basis for a finding of probable cause because the proof was insufficient to support the public harm element.  The incident occurred in daylight hours on a public street, the outburst was brief, there was no menacing conduct, there was no basis to infer that the officer felt threatened, and the threat was directed specifically at a single police officer trained to diffuse the situation.   

CAL Observes:  The Court declined to determine whether the conduct at issue was protected under the First Amendment as urged by appellant and decided the case exclusively on state law grounds.  The Court's decision attempts to clarify that citizen-police encounters that become contentious and draw a crowd will not automatically support a disorderly conduct arrest. Here, there was videotape of a crowd gathering as a result of the defendant's actions, but that alone was insufficient to support the arrest.  The Court distinguished its earlier ruling in People v. Tichnor, 89 N.Y.2d 769, cert denied 522 U.S. 918 (1997),  in which a defendant cursed and spit at an officer and then retreated into a crowded bar after which a brawl ensued, circumstances under which the mens rea requirement had been met --- that there had been intentional or reckless initiation of risk to public harm.