The defendant, charged with disorderly conduct (Penal Law § 240.20 [5]), moves to dismiss arguing that the information is facially insufficient (CPL 100.40). The issue before this court is whether the bare-bone factual allegation that the defendant obstructed pedestrian traffic by refusing to move away from the subway entrance is facially sufficient under CPL 100.40. The court finds that this allegation is deficient and the motion to dismiss is granted.

The defendant was arraigned on December 14, 2005 in an information charging him with disorderly conduct (Penal Law § 240.20 [5]). On January 26, 2006, the defendant failed to appear and a bench warrant was ordered. Ten years later, on April 18, 2016, the defendant voluntarily returned to court and the warrant was vacated. Two days later, the defendant served and filed the instant motion to dismiss on the ground that the information is facially insufficient (CPL 170.30 [1] [a]; 170.35 [1]; 100.40 [1]; 100.15 [3]). The People have not filed a response.

The information, tracking the statutory language^[FN1] , states, in part, that on December 14, 2005 at around 4pm at 41st Avenue and 21st Street the defendant committed disorderly conduct [*2]"with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, obstruct vehicle or pedestrian traffic" [sic]. The information further provides a factual statement by a police officer that he: "observed the defendant, Anglin Conway obstructing pedestrian traffic by refusing to move away from subway entrance."

The criminal offense of disorderly conduct is a violation (Penal Law § 240.20), and as such the accusatory instrument must be an information (compare CPL 100.10 [1] and [4]). An information is facially sufficient when:

"(a) It substantially conforms to the requirements prescribed in section 100.15^[FN2] ; and

"(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

"(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

(CPL 100.40 [1]; see People v Smalls, 26 NY3d 1064 [2015]; People v Jackson, 18 NY3d 738 [2012]; People v Kalin, 12 NY3d 225, 228-29 [2009]; People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d 354, 359 [2000]; People v Henderson, 92 NY2d 677, 679 [1999]; CPL 100.15 [3]).

The People have the burden to ensure that the information is facially sufficient (see [*3]People v Jones, 9 NY3d 259, 261 [2007]). The factual allegations in the information cannot be conclusory (People v Dreyden, 15 NY3d 100 [2010]; People v Kalin, 12 NY3d 225, 229 [2009]; People v Dumas, 68 NY2d 729 [1986]). The required "nonconclusory evidentiary allegations must be contained within the four corners of the instrument itself or in an annexed supporting deposition" (People v Thomas, 4 NY3d 143, 146 [2005] [citations omitted]; People v Bottari, 21 Misc 3d 90 [App Term, 9th and 10th Jud Dists 2011]).

An information that fails to satisfy these requirements is jurisdictionally defective (CPL 100.40 [1]; People v Jones, 9 NY3d 259 [2007]; see People v Alejandro, 70 NY2d 133, 134-135 [1987]).

"[C]ritical to a charge of disorderly conduct is a finding that [the] defendant's disruptive behavior [was] of a public rather than an individual dimension, which requires proof of an intent to threaten public safety, peace or order (or the reckless creation of such a risk)" (People v Baker, 20 NY3d 354, 359 [2013]). Disorderly conduct requires more than an exchange between two individuals; it must rise to the level where it becomes "a potential or immediate public problem" (People v Gonzalez, 25 NY3d 1100, 1101 [2015] [citations omitted]): Disorderly conduct "punishes disruptive behavior of a public rather than individual dimension" (People v Salazar, 13 Misc 3d 120, 121 [App Term, 9th and 10th Jud Dists 2006] citing Provost v City of Newburgh, 262 F3d 146, 157 [2d Cir 2001]).

In the seminal case, People v Jones (9 NY3d 259 [2007]), the factual allegations — similar to the instant allegations — were

"[the] defendant, along with a number of other individuals standing around [on] a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic]" (id. at 261).

The Jones Court found that these allegations were insufficient to support a charge of disorderly conduct under Penal Law § 240.20 (5). In particular, there was no indication as to how the defendant, standing in the middle of a sidewalk in the middle of the night, had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm" (id. at 262 [citations omitted]). Notably, the allegations in Jones contained an additional fact: numerous pedestrians in the area had to walk around defendants. This additional fact was considered by the Court of Appeals to be "a mere inconvenience of pedestrians" and found that more facts were required (id. at 261). Consistent with Jones, the conclusory facts in the four corners of the instant information is insufficient: refusing to move away from a subway entrance without anything more does not support a disorderly conduct charge.

Finally, the behavior in the instant matter is clearly not the type of conduct sought to be deterred under Penal Law § 240.20 (id.):

"[Such conduct] is considerably more serious than the apparently innocent' conduct of defendant here (People v Carcel, 3 NY2d 327, 331 [1957]). Something more than a mere inconvenience of pedestrians is required to support the charge (id. at 332). Otherwise, any person who happens to stop on a sidewalk — whether to greet another, to seek directions or simply to regain one's bearings — would be subject to prosecution under this statute (see People v Nixon, 248 NY 182, 185 [1928] [Those congregating on the street display "atrociously bad manners" by "discommod(ing) some other persons" but such conduct alone does not necessarily give rise to disorderly conduct])" (Jones, at 262-263).

After Jones, the Court of Appeals established "relevant factors" for the trial courts to consider when assessing whether "an act carries public ramifications" (People v Weaver, 16 NY3d 123, 128 [2011]). These factors are:

(1)"the time and place of the episode under scrutiny" (id., citing People v Munafo, 50 NY2d 326, 331 [1997] and People v Pritchard, 27 NY2d 246, 248-249 [1970]);

(2)"the nature and character of the conduct" (id.);

(3)"the number of other people in the vicinity" (id.);

(4)"whether they are drawn to the disturbance and, if so, the nature and number of those attracted" (id.); and

(5)"any other relevant circumstances" (id.; see also People v Moreno, 47 Misc 3d 138[A], 2015 NY Slip Op 50587[U] [App Term, 2d Dept, 2d, 11th and 13 Jud Dists 2015]).

The Appellate Term has applied these factors to the evaluation of informations charging defendants with disorderly conduct (see People v Rubackin, 49 Misc 3d 132[A], 2015 NY Slip Op 51437[U] [App Term, 2d Dept, 9th and 10th Jud Dists 2015]; People v O'Neill, 49 Misc 3d 132[A], 2015 NY Slip Op 51440[U] [App Term, 2d Dept, 9th and 10th Jud Dists 2015]).

There are no factual allegations in the four corners of the information to support the Weaver factors. This court is confined to the assumption that the defendant obstructed pedestrian traffic by refusing to move away from the subway entrance. Absent from these allegations are any facts to show the nature and character of the conduct such as:

•facts that pertain to the duration of the defendant's alleged obstruction;

•facts that relate to the number of people in the vicinity; and/or

•facts that pertain to whether anyone could not enter or leave the subway station due to this alleged obstruction.

Therefore, applying the Weaver factors make it clear that while this alleged incident took place in the public (i.e., the entrance to a subway station), there are no facts to show that this act "carrie[d] public ramifications" (Weaver, at 128).

Accordingly, consistent with Jones and Weaver, the information is dismissed as insufficient.

The foregoing constitutes the opinion, decision and order of the court. IT IS SO ORDERED.

"1. An information... must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the "complainant." The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.

"2. The accusatory part of each such instrument must designate the offense or offenses charged...

"3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.... The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information... to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions."