Disorderly Conduct and the 2nd Departments recent decision of Cassie v. Cassie

In the criminal context disorderly conduct is only that conduct which occurs in a public place and extends to a “point where it becomes a potential or immediate public problem”.  In the context of a Family Court Order of Protection it does not have to extend to a public problem and includes behavior “not in a public place”.  However it gets very tricky because the Petitioner still has to prove that the offender committed the act with intent to cause or recklessly pose a risk of causing public inconvenience, annoyance, or harm.  The 2nd Dept. in Cassie v. Cassie reversed the Lower Courts this past week and vacated the Wife’s Order of Protection as after trial she failed to prove such intent.  There was no question after testimony that the parties were fighting and arguing in their home.  The lower court ruled that the “husband engaged in the offense of disorderly conduct in the home in that he fought with the wife.” A 2 year Order of Protection was granted to the wife and subsequently the husband appealed.  As the Wife failed to prove the required elements for an Order of Protection based on Disorderly Conduct the 2nd Dept reversed the lower Court.  This should prove to be a huge case in the 2nd Dept as it sets precedent for all future cases involving Disorderly Conduct.  Although the Family Court Act states that Disorderly Conduct includes behavior not in a public place the 2nd Department was clear in their decision.  “The significance of the public harm element cannot be overstated.  In virtually all of our prior decisions, the validity of disorderly conduct charges has turned on the presence or absence of adequate proof of public harm”.