Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John J. DeLury, J.H.O.), rendered February 28, 2007. The judgment convicted defendant, after a nonjury trial, of disorderly conduct.

Judgment of conviction reversed as a matter of discretion in the interest of justice, accusatory instrument dismissed, and fine, if paid, remitted.

Defendant was charged in the accusatory instrument with reckless driving. The trial court ultimately found defendant guilty of disorderly conduct (Penal Law § 240.20). Although defendant failed to object to the trial court's consideration of the uncharged violation of disorderly conduct, under the present circumstances, we reach the issue of
the inadequacy of the proof as a matter of discretion in the interest of justice (see People v Alt, ___ AD3d ___, 2008 NY Slip Op 02909 [3d Dept 2008]).

Upon a review of the record, we find that the evidence adduced at trial, when considered in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), was legally insufficient to establish all of the elements of disorderly conduct beyond a reasonable doubt (see Penal Law § 240.20). There was no proof that defendant obstructed vehicular or pedestrian traffic (Penal Law § 240.20 [5]), or committed any of the other acts proscribed by Penal Law § 240.20. Moreover, there was an absence of evidence showing the effect of defendant's conduct on the public. "[T]he disorderly conduct statute . . . applies to words and conduct reinforced by a culpable mental state to create a public disturbance" (People v Tichenor, [*2]89 NY2d 769, 775 [1997]). Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

In light of the foregoing, we do not pass on the other issues raised.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 29, 2008