Disorderly Conduct in New York

What is Disorderly conduct?

Disorderly conduct, a violation, refers to behavior that causes public annoyance, risk, alarm, or inconvenience. A common example that comes to mind regarding disorderly conduct is the drunken college kids making too much noise at night, running through the streets, drinking from open glass bottles while engaged in rambunctious behavior, and other types of mayhem.

It can also include improper behavior in a public space, such as an individual or group of individuals shopping in a sporting goods store deciding to use that sporting goods store as their own baseball field, using the store’s bats, gloves, bases and baseballs to hit balls around the store while others shop.

Additional Charges

Disorderly conduct may often come with additional charges, such as DUI charges, assault, and battery if one of those baseballs hits another person and injures them, reckless driving charges, underage drinking charges, and more. Its broad definition makes falling into one of the categories encompassed by this charge relatively easy, so caution is in order.

Refusing to disperse when the police arrive and order people to leave can also be considered disorderly conduct, and is likely subject to additional charges as well. When the specter of a disorderly conduct charge is raised, it is best to exit the scene quietly, orderly, and immediately.

What law defines Disorderly conduct in New York?

Under New York State law, Article 240 of the Penal Code defines disorderly conduct. Section 240.20 lays out that disorderly conduct in the first degree, a violation, as creating public problems via careless behavior.

Disorderly Conduct

Taking a closer look at Section 240.20 details the elements of the defined crime that must be proven in order for prosecutors to secure a conviction. Let’s consider the text of the law, its precise language, and what it means.

Section 240.20 Disorderly conduct.

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

He engages in fighting or in violent, tumultuous or threatening behavior; or
He makes unreasonable noise; or
In a public place, he uses abusive or obscene language or makes an obscene gesture; or
Without lawful authority, he disturbs any lawful assembly or meeting of persons; or
He obstructs vehicular or pedestrian traffic; or
He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Disorderly conduct is a violation.

Elements

The first element in the above statute that must be proven in order to secure a conviction for disorderly conduct is intended to cause public alarm, annoyance, risk, or inconvenience. If the intent is lacking, that may cause some problems with conviction under this statute although the conduct likely leaves room for other legal liability.

The problematic conduct must also cause risk of the following harms:

Violent fights or threatening behavior; or
Excessive noise; or
Obscene language or gestures in public; or
Interfering with a lawful assembly or meeting; or
Obstructing traffic, either vehicular or pedestrian; or
Gathering in a public place and ignoring police orders to leave; or
Creating any dangerous or offensive condition via any behavior that does not have any sufficient underlying purpose.

Note that repeated use of the word “or” above signifies that any one of the enumerated scenarios will satisfy the statute; all of them are not required for conviction. Also consider that, as discussed above, each of these scenarios can easily involve additional charges.

What are some related crimes?

In some situations, you may be charged with committing a crime that is similar to the charges above. These charges may stand alone, or be in addition to charges for the primary crime. Charges for additional crimes are sometimes dependent on your conduct, as the number and severity of crimes may be dependent on law enforcement’s discretion.

In this instance, the possible related crimes are numerous, given that disorderly conduct often involves other types of problematic behavior. But, as we’ll examine below, this cuts both ways as the breadth may also be turned around to be tried as a possible defense, arguing that the charge is overbroad, or too all-encompassing to be enforceable.

Criminal Anarchy

Section 240.15 lays out the legal definition, and elements required for conviction, of criminal disorderly conduct in the first degree, a class E felony, as agitating for government overthrown by violence, distributes publications encouraging such overthrow, or joins an organization dedicated to such overthrow.

Section 240.15 Criminal anarchy

A person is guilty of criminal anarchy when:

he advocates the overthrow of the existing form of government of this

state by violence, or

with knowledge of its contents, he publishes, sells or distributes any document which advocates such violent overthrow, or
with knowledge of its purpose, he becomes a member of any organization

which advocates such violent overthrow.

Criminal anarchy is a class E felony.

Elements

The first instance of criminal anarchy defined here requires that the defendant advocate for the violent overthrow of the existing government. Peaceful agitation for a new form of government will not fulfill this provision.
The second instance is defined as knowingly publicizing violent government overthrow by distributing publications that the defendant knows include encouragement to overthrow the government violently. If an individual is passing out leaflets on a street corner without knowing its contents, this conduct may not fit this definition of criminal anarchy.
The third instance defines criminal anarchy as knowingly joining an organization which has a mission of achieving violent government overthrow. If the defendant joins such an organization without knowing its true purpose, then their legal culpability may be limited or eliminated.

Note the policy considerations behind each of the offenses discussed above. The common theme among each of them is preserving the public peace. While disorderly conduct may be dismissed as people having fun in some instances, it can pose a danger to others and to public places where people reasonably expect safety and peace.

Disorderly conduct can encompass a wide variety of behaviors, and conviction for this violation may be largely fact-dependent. If a few kids are making noise for a few minutes outside shortly past midnight on Halloween, this is unlikely to be considered criminal disorderly conduct.

If two drivers are drag racing down a public road well over the speed limit and with other traffic presents, this is quite likely to qualify as disorderly conduct, at a minimum.

Policy considerations behind Disorderly Conduct

Because the charge of disorderly conduct has such a broad definition, it can be applied to many situations. Whether conduct is deemed disorderly or not may depend heavily on factors such as the usual level of noise in a neighborhood.

If the neighborhood tends to have street vendors and music playing all night, some kids making noise is probably not going to be disorderly conduct. If the same kids make the same noise in an area where the entire neighborhood consists of two sleepy farmhouses and the only sounds at night are of crickets chirping, the kids are more likely to face disorderly conduct charges.

There may be some policy considerations behind the broad definition of disorderly conduct.

First, neighborhoods, public squares, stores, and the like generally want to keep their location relatively quiet and serene. But, the definition is so broad that some argue it can be used as a catch-all to criminalize just about any behavior. The application of this charge often comes down to the judgment of the involved officers.

The policy aspects here require careful balancing between allowing individuals freedom and securing the peace and safety of communities. To be on the safe side, it’s probably best to generally keep parties inside and quiet after a certain hour as dictated by the neighborhood.

Advocating for violent government overthrow is prohibited with the intention of ensuring that any desired changes to government happen peacefully and at the ballot box. Civil disobedience would not qualify as criminal anarchy as it only involves peaceful actions by the advocates and is generally not intended to overthrow a specific government but to advocate for certain rights or for or against certain policies.
There is also certainly the aspect of existing officials to wish to stay in power, but applying a criminal anarchy charge for this purpose alone would likely be an abuse of power. Disagreeing with, and protesting against, the government is legal and even considered patriotic by many. It’s the violent part that is a problem.

As we live in a time with much political unrest, we have seen protests turn violent, and some of those instances illustrate how events that easily qualify as disorderly conduct can also turn quickly to more serious charges. This section should not be read to quell the peaceful protest, but to avoid violence and ensure that the political process stays in campaigns and voting, rather than via force.

Why consult an attorney?

If you are planning on attending a protest, you may want to consult with a criminal defense attorney to review a safe action plan in case events get out of control so that you can get out of the environment safely and without getting drawn into anything that might result in charges against you.

While no attorney can foresee every conceivable possibility, there are some good standard practices that you can use to maximize the chances that your protest experience is peaceful and as pleasant as possible.

What are the statutory penalties if you are convicted of this crime?

Reading the statutes above, note that each of these offenses is classified by their severity. Felony charges are generally more serious than misdemeanor charges, and a Class A charge is generally more serious than a Class B charge.

New York’s sentencing statutes spell out the possible sentence for each category, which ranges from no time in prison to life sentences. When judges determine to sentence, certain factors may be considered, including prior convictions, persistent offender status, and youthful offender status.

A Class E violent or non-violent felony carries sentencing ranging from a range no prison time to four years in prison. A violation is an offense, excluding traffic offenses, that can result in a sentence with a maximum of 15 days in prison.

What are some of the additional consequences of being convicted?

Regardless of the sentence given by a court, a conviction may cost additional consequences.

Professional consequences can include loss of licenses, reputational damage, and financial costs to associated companies. A conviction may also make finding a job or housing more difficult, and require a fight in court that may be costly, both personally and financially.
Convictions may appear in all manner of routine background checks for things as innocuous as opening a bank account or credit card. It’s essential to take all possible action to avoid a conviction to protect your future opportunities, as well as your family’s.

If you think about how many times you fill out forms that ask whether you’ve ever – ever – been convicted of a felony, the import of doing all that you possibly can to avoid such a conviction becomes clear; In addition, felony convictions can have disruptive effects on your voting rights.

Conviction for disorderly conduct or criminal anarchy may be especially problematic in an individual’s record as it may cause those reviewing the record to form the impression that the individual is prone to irresponsible or dangerous behavior. A conviction for these types of charges is likely to bar individuals from various careers such as teaching, childcare, nursing, law, moderate politics, and more.

Bear in mind that disorderly conduct can also come with more charges, and they are often more serious. Harassing women on the street can turn to assault. A road race can turn to reckless driving. Playful horsing around can turn to serious property damage. It’s important to remember that many activities are legal in nature until they are taken to an extreme that is outside the norms of the area.

None of these additional charges are desirable when looking for a job, an apartment or house, credit card, when traveling, and none are beneficial if printed in the local newspaper.

What are some defenses to Disorderly Conduct in New York?

There are powerful tools you and your attorney can use to fight charges in court. An affirmative defense is spelled out in the criminal statute. To successfully win with an affirmative defense, the defendant has the burden to prove that the defense is available to them, by a preponderance of the evidence.

When non-affirmative defenses are raised, the burden is on the prosecution to prove beyond a reasonable doubt that the defense does not apply to the defendant.

Defenses that may be available to the charges described above include justification, which is essentially a claim that the conduct was necessary because an emergency situation developed such that the conduct was justified to prevent immediate public or private injury, which emergency developed by no fault of the defendant.

The justification defense reflects the recognition that there are times when circumstances emerge to create a situation in which a defendant may not realistically have full control over their options.

This defense may come into play more often in the disorderly conduct context as being caught up in an unruly crowd that turns dangerous may require some self-defense and the resulting melee may make it difficult for police to identify who the instigators are and who the self-defenders are.

If you can convincingly argue that you were justified in your actions because you had to defend yourself against a disorderly and violent group, you are that much closer to having disorderly conduct charges were dropped.

Infancy may be another available defense. This defense is available to those under 18 years of age as a means to potentially shield them from criminal liability. This defense depends heavily on the circumstances of the case and specific facts as minors are not automatically relieved of responsibility for their actions.

This defense reflects the general policy that minors may lack the understanding to know how their actions are wrong, or illegal. It also considers that courts may take a different approach to minors so as to minimize damage to their future options if the crime is sufficiently minor. Duress may be an effective defense as well. The presence of duress may remove responsibility for the commission of a crime as the defendant’s actions may not be their own.

How to mount an effective defense?

In terms of mounting an effective defense, note that many statutes require that the defendant knew about the problematic actions. Proving this can be difficult as it can be seen as trying to “read minds.” While the defendant’s knowing may be explicitly stated or otherwise determined, it can be quite elusive to establish without an explicit statement by the defendant.

This may be a defense angle worth raising with your attorney and exploring how you can prevent prosecutors from proving this requirement. An experienced and effective criminal defense attorney should be able to work with you on establishing doubt regarding this element.

Another possible defense of sorts to a disorderly conduct charge is the breadth of the definition of the crime and the inconsistent ways it may be applied, depending on the time of day, location, etc. If your attorney can show that the same conduct was acquitted as disorderly conduct in a similar location, then this might serve as another useful defense.

Help is Available

Facing any of the charges discussed above requires the assistance of a knowledgeable attorney who can help you navigate the various processes involved in the legal process. It’s crucial to engage an experienced criminal defense lawyer as soon as possible to ensure your rights are protected, and your case receives the best outcome possible.

In addition to having knowledge of the law itself, lawyers are often familiar with judges in their area and know their varying attitudes and demeanors. This can help the lawyer craft their strategy in such a way that would most appeal to the assigned judge’s personality.

Additionally, if you have concerns about the breadth of the disorderly conduct charge and how it may be applied, contact us to discuss conduct that is likely and that which is unlikely to result in charges based on your circumstances. Eliminating or minimizing any charges or sentencing is possible and well worth placing the call. Contact us to review your situation with an experienced legal professional who can help you take charge of your situation and guide your way forward.