Appeal from judgments of the Justice Court of the Town of Blooming Grove, Orange County (Daniel K. Brown, J.), rendered June 29, 2006. The judgments convicted defendant, after a nonjury trial, of harassment in the second degree and disorderly conduct.

Judgment convicting defendant of harassment in the second degree affirmed.

Judgment convicting defendant of disorderly conduct reversed on the law and accusatory instrument dismissed.

Defendant was charged with harassment in the second degree (Penal Law § 240.26 [1]) and disorderly conduct (Penal Law § 240.20) in connection with an altercation that occurred on March 4, 2006, at Camp LaGuardia (a shelter). He argues only that the accusatory instruments are jurisdictionally defective. According to these instruments, just prior to the altercation, the complainant police officer was observing items in defendant's locker, near his bed. Defendant became irate. When ordered to step back, defendant slapped the complainant's hand. The complainant then attempted to arrest him. Defendant at this point swung his hand and jabbed the complainant in the throat with it. The complainant radioed for assistance, and two additional police officers responded to the scene. Upon arriving, they observed an altercation taking place between the complainant and defendant. The three police officers together wrestled with defendant for several minutes, and ultimately handcuffed him and placed him in custody.

The harassment charge rested on defendant's alleged slapping of the complainant police [*2]officer's hand. Defendant takes the position that the information charging harassment is facially insufficient because it fails to provide factual allegations that "support[ ] or tend[ ] to support" (CPL 100.15 [3]) the proposition, "provide reasonable cause to believe" (CPL 100.40 [1] [b]), and "establish, if true," (CPL 100.40 [1] [c]) that he harbored the requisite intent to "harass, annoy or alarm" (Penal Law § 240.26). We reject this argument. The section of the information denominated "FACTS" adequately conveys the allegation that defendant acted "with intent to harass, annoy or alarm" (cf. People v Hall, 48 NY2d 927 [1979]). Moreover, the requisite intent is adequately "circumstantially established for pleading purposes" (People v Prevete, 10 Misc 3d 78, 80 [App Term, 9th & 10th Jud Dists 2005]) by the allegations of the supporting deposition. The question of whether defendant's alleged slapping of the police officer's hand was actually reflexive or spontaneous, rather than intentional, was an issue better left for trial (see generally People v Miles, 64 NY2d 731, 732 [1984]; cf. People v Clark, 19 Misc 3d 134[A], 2008 NY Slip Op 50698[U] [App Term, 9th & 10th Jud Dists 2008]).

We agree with defendant, however, that the accusatory instrument charging him with disorderly conduct (the information and three supporting depositions) is jurisdictionally defective because it fails to provide factual allegations that "support[ ] or tend[ ] to support the charge[ ]" (CPL 100.15 [3]), "provide reasonable cause to believe that [he] committed the offense charged" (CPL 100.40 [1] [b]), and "establish, if true, every element of the offense charged" (CPL 100.40 [1] [c]). More specifically, the information and supporting depositions do not allege any facts indicating that defendant's conduct had a "public . . . dimension" (People v Munafo, 50 NY2d 326, 331 [1980]), a necessary component of the offense of disorderly conduct (see Penal Law § 240.20; Munafo, 50 NY2d at 331; People v Council, 19 Misc 3d 145[A], 2008 NY Slip Op 51132[U] [App Term, 2d & 11th Jud Dists 2008]; People v Dennis, 13 Misc 3d 41 [App Term, 9th & 10th Jud Dists 2006]; see generally People v Jones, 9 NY3d 259 [2007]). The information and supporting depositions do not allege that any civilian bystanders were present or nearby, and, in our view, the mere arrival of two backup police officers did not give the incident a public dimension (cf. People v Tichenor, 89 NY2d 769 [1997]).

Accordingly, the judgment convicting defendant of harassment in the second degree is affirmed, and the judgment convicting defendant of disorderly conduct and sentencing him to time served is reversed and the accusatory instrument charging that offense is dismissed.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: February 27, 2009