How to fight a disorderly conduct charge in a New York City Court


If you are reading this you were probably just handed a pink summons or desk appearance ticket charging you with a violation of New York Penal Law section 240.20 (Disorderly Conduct) and directing you to appear at one of the various NYC criminal courts located in either the Bronx, Queens, Manhattan or Staten Island. (Brooklyn disorderly conduct pinks summons cases are handled in Manhattan at 1 Centre Street) 


If you have a summons for Disorderly Conduct, you are in good company.  Disorderly conduct under Penal Law Section 240.20 is among the most commonly issued summons and desk appearance tickets ("DAT'S") for NYC Criminal court.   Many successful law-abiding people have been charged with disorderly conduct in New York City for innocent behavior such as standing in the street trying to hail a cab, arguing loudly with friends, cutting in line, going the wrong way on an escalator,  talking back to cops and even double parking (Yes, even double parking). Sometimes a New york city cop will issue someone a disorderly conduct some for riding a bicycle in an unsafe manner.  Several years ago Alec Baldwin was cited for disorderly conduct a few years ago for riding his bicycle the wrong way on a one way street.  


Unlike most other New York Penal Law offenses which cover specific, narrowly-defined conduct, New York's Disorderly Conduct statue contains 7 different subsections,  to wit:  1) fighting or tumultuous conduct 2) making unreasonable noise 3) using abusive or obscene language 4) disturbing a lawful assembly 5) blocking vehicular or pedestrian traffic 6) refusing to disperse and 7) creating a hazardous condition.  These subsections are liberally worded so when interpreted liberally they can cover plenty of everyday situations and behaviors.  


Having handled hundreds of disorderly conduct charges arising in the Bronx, Queens, Brooklyn and Manhattan, I have seen many law-abiding people who have never been charged with anything more serious than a parking ticket brought into criminal court on disorderly conduct charges.  In part, it happens because many over-eager cops use the disorderly conduct statute as a catch-all for behavior that practically everybody does from time to time.  


For example, a few friends arguing or just being loud late at night on a Manhattan sidewalk on the Lower East side might become the unlucky recipients of a disorderly conduct summons if the noise draws the attention of an overzealous police officer eager to meet a monthly summons or arrest quota.   Or, a Brooklyn bar customer might be arguing with a bouncer or restaurant worker over a mistake in the addition of the check.   If, for whatever reason, police get involved, they often take the bouncer's side of the argument and cite the customer with a violation of disorderly conduct subsection (1) "fighting or tumultuous conduct."  


Another example where the statue is overly used is with double parking.  In NYC, a person who double parks his vehicle for a few moments might find themselves getting a summons for disorderly conduct and being accused of violating the subsection on blocking vehicular traffic. This happens frequently in Manhattan and in the Bronx


But nowhere is the disorderly conduct statute capable of more liberal interpretation and abuse than with Subsection 7's rules again creating a hazardous or physically offensive condition.  Under that subsection, I have handled cases where NYC drivers were cited for failing to signal when changing lanes, failing to come to a complete stop at a stop sign.  I have even represented clients charged with that section as pedestrians for crossing the street against the light.  A person walking down the street while texting might even be vulnerable to a charge under this section.


However, even though the statue is vulnerable to overuse and abuse by law enforcement, lawyers who understand the intent  behind the statue and how the New York City Courts interpret the statue's reach should be well prepared to get your disorderly conduct summons dismissed as soon as you go to court.


Lawyers experienced in New York's Disorderly Conduct Statute know that regardless of which subsection is charged, there must either be an "intent to cause public annoyance, inconvenience or harm", Or the person has to "recklessly create a risk of public annoyance, inconvenience or harm the public".  Any experienced disorderly conduct lawyer will understand the importance of this language in defending their client.


One line of attack that is often successful is for the disorderly conduct lawyer to argue is as follows: whatever the incident giving rise to the summons--if the incident did not involve a significant segment of the public or was of public dimension--than it is not disorderly conduct.  There is ample support for this argument in the caselaw.  


For example, in the case of People v Gonzalez, the New York Court of Appeals  held that a defendant who shouted obscenities at a police officer in a Manhattan bound subway was not committing disorderly conduct even though his conduct drew provoking looks of surprise and evasive action from onlookers.   The Court held that a person may only be guilty of disorderly conduct when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem.  


Moreover, even when the public is involved there has to be evidence of more than just a minor inconvenience them.  For example, in People v. Jones, the Court of Appeals held that defendant who was congregating on a public sidewalk in the Bronx could not be guilty of disorderly conduct for blocking pedestrian traffic just because people walking by suffered the minor convenience of having to walk around the defendant.


While disorderly conduct is not a "crime" under New York Law, it is important to treat the summons carefully to avoid any potential stigma from it.

   

To be clear,  Disorderly Conduct under Penal Law Section 240.20 is a "violation" and not a misdemeanor under the New York Penal Law which states under Section 15 that an offense has to carry a penalty of more than 15 days in Jail to be considered a misdemeanor in New York.  Since Disorderly conduct only carries a maximum penalty of 15 days jail. it is classified as a "violation".  In New York, only misdemeanors and felonies are classified as crimes.  Accordingly, a disorderly conduct conviction will not leave a person with a criminal record even in the unlikely event that jail is imposed.


However, although it is not a crime, a disorderly conduct conviction should not be taken lightly and should be avoided whenever possible.    While many applications for jobs, college, licenses will only ask about criminal convictions, some applications will ask if the person has ever been convicted of anything more serious than a minor traffic violation.  


Questions on applications could still implicate a person's disorderly convict conviction requiring disclosure.  Having to reveal such a conviction might cause embarrassment and worry.  Not to mention that it might be be viewed unfavorably by a prospective employer or school, etc..  Thus, it is important to remember that even though it is just a violation with the potential for only minimal jail time, a disorderly conduct summons should be handled by a competent lawyer well versed in this area. A good lawyer should be able to avoid a conviction for the disorderly conduct charge either through an immediate dismissal or an ACD.  


An "ACD" is short for an "Adjournment in Contemplation of Dismissal" under Penal Law 170.55.  When a person receives an ACD it means that the case will be dismissed and sealed in 6 months as long as the person does not get into any further trouble during the six month period.  For many people, the ACD is a great way to dispose of  a disorderly conduct case because the individual  merely has to consent to the ACD and then avoid getting into any trouble for six months.  At the end of the 6 month period the summons is automatically dismissed.  It is important to remember that the individual does NOT have to plead guilty to get an ACD.


It is also important to remember that when a person either pleads guilty or is found guilty after trial to a disorderly conduct charge, the guilty plea will become a permanent public court record at the Courthouse.  Public Court records are available for review by any person.  On the other hand, if a person gets their disorderly conduct charge dismissed either immediately or through an ACD,  the record will be sealed pursuant to CPL 160.50 and the public will not have access to it.


The bottom line here is that while the disorderly conduct is just a violation and not a crime, a person charged with disorderly conduct should take it seriously and seek an experienced criminal defense lawyer who understands both the charge and the court.  Getting the ACD or the immediate dismissal might avoid a lot of aggravation and worry later on to a prospective student, job-seeker or licensee when faced with an application question that would otherwise require a Yes answer to a disorderly conduct conviction.


What lawyers can do to get New York disorderly conduct charges dismissed


Lawyers can fight disorderly conduct charges on several fronts in the Bronx, Manhattan Queens and Staten Island.  The first line of attack should be that the summons or criminal complaint (in the case of a DAT) is facially insufficient. This requires that they obtain and review the court copy of the summons from the clerk of court.  The court copy of the summons has more information than the pink copy of the summons that was handed by the cop to the recipient.  The court copy has a section where the officer who issued the summons writes what he or she saw that gave rise to the summons for disorderly conduct.  I call this the "fact section" of the summons.  regardless of whether the summons was issued in the Bronx, Brooklyn, Manhattan, Queens or Staten island, the Court copy of the summons will have a fact section


This fact section of the summons is what the judge looks at.  An attorney should carefully review the fact section of the summons before court with the goal being to present an argument to the judge that the summons is facially insufficient.  Without proper review of the fact section of the summons before court there is less chance an attorney will be able to make a compelling motion to dismiss on grounds of facial insufficiency.   


But even when the fact allegations in the summons are legally sufficient to sustain the disorderly conduct charge, the lawyer should be able to present mitigating arguments to the court as to why an immediate dismissal or an ACD is appropriate.  Oftentimes there are innocent explanations for seemingly bad behavior as noted in the summons. 


Even when there is no innocent explanation for the conduct giving rise to the summons, often the lawyer can provide mitigating facts about the client's background, work history as argument in favor of a dismissal.  For example, if the client is a college student with no prior record, that should be brought to the judge's attention as argument for a dismissal or ACD.


Below are a few more facts about disorderly conduct under Penal Law 240.20


Disorderly conduct is a charge to which many misdemeanor and even felony charges are eventually reduced. Even some felonies--in very rare cases-- eventually get reduced to a 240.20 disorderly conduct


When a client is charged with a criminal offense, such as possession of marijuana in the 5th degree, assault, reckless driving, etc., many NYC lawyers will seek a disorderly conduct (240.20) as a compromise between the misdemeanor and the outright dismissal and/or the ACD.  NYC Prosecutors frequently offer it instead of the criminal misdemeanor when a defendant has a minimal or no prior record. In fact, anyone spending time in a New York City criminal courtroom, will likely hear prosecutors offering a 240.20 more frequently than any provision of the Penal Law.


Offering the 240.20 allows prosecutors the chance to dispose of a case short of offering an ACD or completely dismissing the case.


As an NYC criminal defense lawyer, I am frequently discussing with clients the Penal Law"240.20" aka disorderly conduct.   It is a violation, not a crime and will result in a sealing under CPL 160.55   But a sealing under CPL 160.55 does not seal the Court file, it only seals the arrest records.  Since the court file is still available to the public under a CPL 160.55 sealing, If the original charge was a misdemeanor or a felony, this original charge that was reduced to a 240.20 is available to background checkers and the general public.


Often, clients without records who are offered the Penal Law 240.20 in the NYC Criminal Courts and want to keep their records clean try to get a further reduction to an ACD, which results in a complete sealing under CPL 160.50. The sealing under 160.50 seals not only the arrest but also the court file.  


When charged with a misdemeanor in NYC such as petit larceny, obstructing governmental administration, assault or possession of a controlled substance, it is often very tempting for a person to accept an offer to plead guilty to a reduced charge of  240.20 Disorderly Conduct.    Sure, the 240.20, unlike a misdemeanor, is not a crime and just a "violation" which means that it will neither create nor add to a peron's  criminal record.

That is very important because It means that a person (assuming they have no prior criminal convictions) will not have to answer "yes" on a job application to a question asking whether they have ever been convicted of a crime.


However, because of the sealing issues under CPL 160.55 discussed above, along with a panapoly of other reasons, the decision to settle for the 240.20 is one that should be carefully considered and discussed with a good NYC criminal lawyer.


Moreover, just because Disorderly Conduct is a violation and not a crime, someone charged with it should not automatically enter a plea to it to get it over with. Pleading guilty to anything under the Penal Law-- regardless of whether it is label as a crime or a violation-- is a decision that always requires careful consideration backed by good advice.  For that matter, pleading to anything under any statute, code or rule or regulation should not be done without proper counsel.


While a 240.20 Disorderly Conduct is not a crime, there may be--aside from the sealing issues-- hidden collateral consequences to a guilty plea to a Disorderly Conduct. I think that no New York lawyer should ever tell their client that there are no consequences to a disorderly conduct plea.


Although records of the arrest--if there was an arrest-- will get destroyed under CPL 160.55, if there is a plea to a 240.20 down from a criminal offense, the public information in the Court file will always be available to the general public, background checkers or anyone who bothers to go to the Courthouse where the case was heard.  They would just need a Defendant's name and other information such as arrest date, or docket number etc.


Nonetheless, there are times when it is wise to accept the 240.20 Disorderly Conduct offer.  Every case is different, but one example would be when a client is charged with an easily proven misdemeanor such as shoplifting (especially when caught outside the store with merchandise) and the prosecutor offers the 240.20, but adamantly refuses to offer the ACD and is ready for trial and has his/her witness are at the courthouse ready to testify against the client.


Under that scenario, accepting the 240.20 disorderly conduct (assuming it is still being offered) will prevent the possibility of having a permanent criminal record. But, as always, any strategy choice should be discussed with one's own NYC Criminal attorney.


In cases where there is no misdemeanor charged and the top count is just a 240,20, and the prosecutor refuses to offer the ACD (adjournment in contemplation of dismissal under cpl 170.55), often the best choice may be to just go ahead and demand a trial. But again, that decision is something to make after consulting with an experienced criminal defense lawyer. One that is familar with the particular court where the disorderly conduct is being heard.


Sometimes, there are good dismissal motions that can be made with a 240.20 disorderly conduct charge, especially when the underlying allegation involves either obscene language, fighting, blocking pedestrian or vehicular traffic, or unlawfully congregating. Call 212-786-2999 to discuss your options if you have a disorderly conduct charge pending in the New York City Criminal Courts.




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Law Offices of Robert Briere
New York City Criminal Defense Lawyer