The defendant, Tiffany M. Babcock, was charged with one count of disorderly conduct in violation of Penal Law § 240.20(2). The accusatory instrument alleges that on August 4, 2019, at about 1:22 a.m., at 38 East Albany Street, the defendant "did recklessly create a risk of public annoyance and inconvenience when she was heard yelling outside the residence at 38 East Albany Street, while standing on a public sidewalk in a residential area. Furthermore, the defendant continued said actions for approximately 15 minutes, and could be heard from approximately one half block away. Said actions by defendant did cause a call for service for OPD."

A non-jury trial was held on January 16, 2020, at which the only witness was City of Oswego Police Officer Casey Anderson. Defendant, who had been given Parker warnings, was not present so the court proceeded in her absence.

Upon the evidence presented at trial, after due deliberation the court makes the following findings of fact:

Officer Casey Anderson testified that on August 4, 2019, around 1:22 a.m. he was dispatched to 30 East Albany Street, which is a residential area, in response to a suspicious persons complaint regarding people outside. He testified that he parked around the corner from that address, got out of his patrol car, and walked around the corner. He observed two individuals whom he testified were later identified as the defendant and a Mr. Recore, approach 38 East Albany Street and knock on the door. From about half a block away, he observed defendant start yelling someone's name while she was standing on the sidewalk. After observing them leaving the residence he following them briefly and then took defendant into custody.

The prosecutor showed Officer Anderson a photo which he identified as a photo of the [*2]person that he dealt with on August 4, 2019. The photo was received into evidence over defendant's objection.

Defense counsel declined to cross-examine Officer Anderson and moved to dismiss the charge at the close of the people's case. The court reserved decision on that motion. Defendant did not present any proof.

The court must now determine defendant's motion for a trial order of dismissal.

CPL § 290.10, in pertinent part provides as follows:

1. At the conclusion of the people's case or at the conclusion of the evidence, the court may, . . . upon motion of the defendant (a) issue a 'trial order of dismissal,' dismissing any count . . . upon the ground that the trial evidence is not legally sufficient to establish the offense charged . . .

'Legally sufficient evidence' means "competent evidence which, if accepted as true, would establish every element of the offense charged and the defendant's commission thereof" (CPL § 70.10([1]).

Therefore, the defendant is entitled to dismissal unless the people presented competent evidence to establish the following elements:

1. That on or about August 4, 2019, the defendant recklessly engaged in conduct which created a risk of public inconvenience, annoyance or alarm;

2. By making unreasonable noise.

Penal Law § 15.05(3) in pertinent part defines "recklessly" as follows:

"Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. . .

Thus, to avoid dismissal, there had to be competent evidence that the defendant's conduct in yelling created a substantial and unjustifiable risk of public inconvenience, annoyance or alarm, and that she was aware of and consciously disregarded that risk.

There was no evidence which would establish the requisite substantial risk of public disturbance, annoyance, or alarm. In determining whether there is such a risk, the finder of fact must consider such factors as 'the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted . . .' [citations omitted]" (William C. Donnino, Practice Commentary, McKinney's Cons. Laws of NY, Electronic Update, Penal Law § 240.20).

Although Officer Anderson's testimony established that the conduct occurred in a residential neighborhood at 1:22 a.m., and that he could hear defendant yelling from a half block away, there was absolutely no proof that any other person heard, much less was annoyed or alarmed by, defendant's yelling.The accusatory instrument claimed that "[s]aid actions by defendant did cause a call for service for OPD." However, Officer Anderson's testimony at trial was that he was responding to a suspicious persons report, and he offered no testimony whatsoever to the effect that the basis for that complaint was that someone was making noise. [*3]The accusatory instrument also alleges that the defendant continued to yell for approximately 15 minutes. Officer Anderson offered no testimony as to the duration of defendant's yelling. Looking at his testimony in a light most favorable to the people, his testimony established that he observed defendant yelling from the time he was a half block away until he approached 38 Albany Street.Under these circumstances, there is no proof of a substantial risk of public annoyance or inconvenience.

Having determined that there was no evidence of any risk of public annoyance or inconvenience, there are no facts from which one could infer that defendant was aware of and consciously disregarded such a risk.

Similarly, there was no proof of the element of "unreasonable noise.""An 'unreasonable noise' is 'a noise of a type or volume that a reasonable person, under the circumstances, would not tolerate' " [citations omitted] (William C. Donnino, Practice Commentary, McKinney's Cons. Laws of NY, Electronic Update, Penal Law § 240.20).The lack of proof of the circumstances surrounding defendant's yelling of a name, makes it impossible for the court to find facts that would support a finding that the noise was unreasonable.

Lastly, the people the people failed to present facts that would support that Tiffany Babcock was the person who was yelling. While the use of a photo to identify a defendant who is absent from court is clearly permissible (see, e.g. People Waithe, 163 AD2d 347), there was no evidence that the photo that was shown to Officer Anderson was of Tiffany Babcock.

Officer Anderson identified the person in the photo as the person he observed yelling on the time and date charged. But there were no factual allegations that Tiffany Babcock was the person in that photo. Officer Anderson did not testify, for instance, that he knew Tiffany Babcock from prior arrests, or that he had requested her license upon arresting her and that she matched the picture on that license which identified her as Tiffany Babcock. If that were the case, he could have testified as to her identity without being shown a photo in court.

The people did not call whoever provided the photo used at trial to establish how they knew that the photo was of Tiffany Babcock — i.e. that it was an arrest photo of Tiffany Babcock from official police records, or that the fingerprints taken at the time of defendant's arrest were associated with that photo under the name Tiffany Babcock, or the like.

In light of the foregoing, the court GRANTS defendant's motion for a trial order of dismissal. This constitutes the decision of the court.