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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23966
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I was convicted of disorderly conduct" tumultuous behavior

Customer Question

I was convicted of disorderly conduct" tumultuous behavior impeding due course of business". I had had an altercation at the post office-swore once saying -'f it" and was told to leave . I did not because I needed to pay for a box I had addressed-postal clerk was furious at the swear word and said she did not have to wait on abusive customers. Since I refused to leave,police were called. A man working upstairs came down to see what was happening-his working environment interrupted. Vic***** *****ed stating I was throwing boxes, kicking mail tubs and swearing a blue streak. None of this occred. Only witness(man upstairs) saw no material on the floor witnessed no kicking or swearing in his presence. Found guilty; case filed.
LAwyer did not attempt to prove she had lied. There is an appeal scheduled in superior court.
My belief-case tried on wrong grounds. I had a right to swear under 1st ammendment;should have been allowed to pay for box. Clerk's adverse reaction to one swear word elevated problem-cause of argument-fury over my speech-caused arrest. Unconstitutional.
Submitted: 6 months ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 6 months ago.

What is your question with regard to this?

Customer: replied 6 months ago.

where is your resonse-I see no button

Expert:  Zoey_ JD replied 6 months ago.

I didn't answer your question. I asked you one. I cannot respond until I know what your question is.

Customer: replied 6 months ago.

My question is:

Am I correct is believing my case is predicated on my right to have sworn without being denied service by the postal clerk.

She was furious and escalated the dispute by refusing to allow me to pay for the box I had addressed/used. Since I stood my ground, she called police who subsequently arrested me. I stayed to hear her tell them I was throwing things, kicking and threatening her-all untrue. She added to the lies on the stand under oath-judge "found her credible" and did not acknowledge ambivalence or directly contradictory evidence from the witness who saw none of the evidence of property abuse she asserted.

In the appeal I am wondering if the terms of engagement should be changed-tumoultous behavior in defense of one's rights seem the more justified argument. I want a dismissal. 70 years old,no record-even traffic violation, volunteer reading tutor.

Expert:  Zoey_ JD replied 6 months ago.

Here's the problem:

First of all, an appeal is not a "do over." You are not going to be able to try your case to a higher court. An appeal looks only at a lack of due process or judicial errors from the record of your previous case. The only basis I see for an appeal is that your lawyer had a different theory of defense than you did. So you can try to appeal it on the basis of the ineffective assistance of your lawyer.

If you win your appeal, THEN you could get your conviction overturned and a retrial.

But here's the other problem. The evidence that came out in your trial does not support your theory. If what you said was correct, then yes, you should not be convicted of disorderly conduct for nothing more than saying one swear word.

However, the witnesses at the post office do not agree that this is what happened. Disputes of fact are what trials are all about, and you can expect the postal workers to testify in a second trial consistently with the first one. So again, it's going to come down to your word against the various postal workers. And your constitutional argument still may not be a winner if a judge or jury believes them and not you.

I wish you best of luck with your appeal.

Customer: replied 6 months ago.

I guess I have too many questions-thanks

Expert:  Zoey_ JD replied 6 months ago.

You can ask follow ups here on this question thread if you need clarification of what I said to you.

Expert:  Zoey_ JD replied 6 months ago.

Just checking in to see if you need more help or any clarification of my answer. If so, please reply here on this question thread.