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It’s official – it is thoroughly legal to curse at the police in New York State

On June 25, 2015, the New York State Court of Appeals, the highest court in New York State, reversed the conviction of disorderly conduct and criminal possession of a weapon in the third degree against one Richard Gonzalez in the case of People v. Richard Gonzalez. Back in 2011, Mr. Gonzalez was arrested in Manhattan for Disorderly Conduct, NY Penal Law § 240.20 [3], for shouting obscenities at police officers in a Manhattan subway station. During a search incident to that arrest the police found a pocket knife Mr. Gonzalez used for work and in addition charged him with possession of a weapon in violation of NY Penal Law § 265.02 [1].

Under the law, it is illegal to use abusive or obscene language or make obscene gestures in a public place only when the person does it with the intent to cause public inconvenience, annoyance, or alarm. The courts have described the element of intent as “only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem.” See, People v Baker, 20 NY3d 354, 359-360 [2013], and, People v Weaver, 16 NY3d 123, 128 [2011].

Prior to trial Mr. Gonzalez moved the trial court to dismiss the disorderly conduct charge as well as suppress from evidence the knife as fruit of the poisonous tree. The trial court denied the application to suppress and following a jury trial Mr. Gonzalez was convicted of one count of criminal possession of a weapon in the third degree, Penal Law § 265.02 [1].

In overturning the conviction, the NY Court of Appeals held that the police had no probable cause to detain, search, and arrest Mr. Gonzalez. This was because their was no evidence in the record to support the necessary element that, in his rant against the police, Mr. Gonzalez  intended to cause public inconvenience, annoyance, or alarm, or that the exchange between the individual disputants reached a point where it became a public problem.

While this is a great decision for 1st Amendment right of free speech, there are nonetheless 6 ways other than using abusive or obscene language that a person can be accused of committing the infraction of disorderly conduct. They include engaging in fighting or in violent, tumultuous or threatening behavior; making unreasonable noise; unlawfully disturbing a lawful assembly or meeting; obstructing vehicular or pedestrian traffic; congregating in a public place and refusing to comply with a lawful order to disperse; and creating a hazardous / physically offensive condition which serves no legitimate purpose.

While any disorderly conduct charge is a violation on the same level of a traffic ticket, it is different in the sense that it is a violation under the penal code and not the vehicle and traffic law. This means that anytime someone does a criminal background check for a job or other purpose, this conviction will be reported. This is why it is important to avoid at all costs a conviction of disorderly conduct.