People v. Burgwin — 9 Misc. 2d 470

Majority

p. 470

The People of the State of New York, Respondent, v. Bruce Burgwin, Appellant.

Court of Special Sessions of the City of New York, Appellate Part, Second Department,

February 11, 1958.

Frank D. O’Connor, District Attorney (Morton Greenspan of counsel), for respondent.

Henry Albert for appellant.

The record here is devoid of any proof of (1) that the defendant frequented or loitered about a public place for the purpose of committing the crime specified in subdivision 8 of section 722 of the Penal Law, or (2) that the defendant solicited anyone for any purpose whatsoever; (3) that there was an intention on the part of the defendant to provoke a breach of the peace and (4) that the defendant’s alleged acts, charged to have been committed behind closed doors of cubicles, may have occasioned or had occasioned a breach of the peace.

Accordingly, the complaint charging the defendant with disorderly conduct, pursuant to the above subdivision and section should be dismissed. (People v. Humphrey, 111 N. Y. S. 2d 450 ; People v. Strauss, 114 N. Y. S. 2d 322 .)

p. 471

The judgment of conviction should be reversed and complaint dismissed and fine remitted.

Kozicke, Kozinn and Molloy, JJ., concur.

Judgment reversed, etc.