People v. Pennisi

• Decision Date: 16 November 1990
• Docket Number: J-6
• Citation: 149 Misc.2d 36,563 N.Y.S.2d 612
• Parties: The PEOPLE of the State of New York v. John PENNISI and Michael Liquori, Defendants
• Court: New York Supreme Court

Page 612

563 N.Y.S.2d 612

149 Misc.2d 36

The PEOPLE of the State of New York v. John PENNISI and Michael Liquori, Defendants.

Supreme Court, Queens County,

Criminal Term, Part J-6.

Nov. 16, 1990.

John J. Santucci, Dist. Atty., Queens County by John Scarpa, Asst. Dist. Atty., Kew Gardens, for the People.

Edwin Shulman, Kew Gardens, for defendant Pennisi.

Ronald Rubinstein, Kew Gardens, for defendant Liquori.

WILLIAM D. FRIEDMANN, Justice.

In this homicide prosecution, defendants object to the deceased's family and their supporter-spectators, wearing in the courtroom, obtrusive corsages of red and black Specifically before the jury entered the courtroom and the taking of evidence commenced, defendants' attorneys brought to the attention of the court that approximately thirty-five persons, occupying one-half of the spectator seats in the courtroom were wearing red and black ribbon corsages. The court immediately held an on the record side-bar conference. Defendants contended that the ribbons represented an unfair attempt to impede justice and influence and/or pressure the jury/court, thereby denying them a fair and impartial courtroom environment and resulting trial. The prosecutor contended that the ribbons were only symbols of concern and solidarity for the victim's family by persons affiliated with the non-for-profit national organization called "Parents of Murdered Children" and/or its New York Branch, "Parents of Murdered Children of New York State, Inc." It is to be noticed that one of the announced goals of this organization is "to make the criminal justice system more sensitive to the needs of victims and treat victims with greater compassion and concern". The prosecutor also contended that the wearing of such ribbons had been permitted in other nameless, but relevant recent criminal proceedings in the Second Judicial Department. No specifics were ever submitted.

ribbons of approximately five to six inches in length.

After hearing such argument, this court summarily ruled, in open court, in the absence of the jury, that the wearing of the ribbons in the courtroom would be prohibited. Compliance was promptly obtained and the trial continued.

RELEVANT LAW

The simple act of wearing concern and/or support ribbons or other expressive symbolic clothing or accessories or the carrying of objects of similar import by spectators and/or participants in a public courtroom, frames a much more complex problem.

Its resolution requires a court to make a value judgment based upon the balancing of the exercise of First Amendment and Fourteen Amendment rights by spectators and/or participants with the obligations of a Judge to maintain courtroom order and decorum.

In order to place hands on the propriety of courtroom wearing of ribbons and/or other similar forms of expression, it would seem useful to review such forms of expression in their constitutional context.

Freedom of expression, though at the very core of our organized democratic society, exists only under law and not independent of it (dissenting opinion, Jackson, J., in Terminello v. Chicago, 337 U.S. 1, 31, 69 S.Ct. 894, 908, 93 L.Ed. 1131).

As we all should know, the rights of free speech and assembly, though fundamental in our constitutional scheme of government, are not absolute under our laws, (Cox v. Louisiana, 379 U.S. 536, 545, 85 S.Ct. 453, 459, 13 L.Ed.2d 471; Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149; People v. Radich, 26 N.Y.2d 114, 118-119, 308 N.Y.S.2d 846, 257 N.E.2d 30; People v. Street, 20 N.Y.2d 231, 235, 282 N.Y.S.2d 491, 229 N.E.2d 187, and People v. DuPont, 107 A.D.2d 247, 254, 486 N.Y.S.2d 169). Such rights do not mean that everyone may express themselves without limitation at any time or at any place, even in certain public places. (Cox v. Louisiana, supra, 379 U.S. at 559, 85 S.Ct. at 466; Adderley v. Florida, supra, 385 U.S. at 54, 87 S.Ct. at 250 [Douglas J. dissenting]; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 and Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105).

There are some public places, such as a courtroom, which are so clearly committed to special and defined purposes that their use for the airing of general grievances would be clearly out of order, i.e., the communication of feelings or concerns about any person, issue or cause involved or otherwise would be entirely out of place.

This court rejects any premise that people who want to communicate protests, views or feelings of any kind or nature, for or against any person, issue or cause, have We must remind ourselves that a courtroom is committed to being a neutral environment--a holy shrine of impartiality in its resolutions of differences, and a place dedicated to fairness and equal treatment under law, (20 AmJur2d § 36, § 38, § 39).

                a constitutional right to do so within the confines of a public courtroom.   Such matters must be communicated through an evidentiary way at [149 Misc.2d 39] trial or hearing or other court sessions pursuant to prescribed rules of courtroom procedure and/or decorum
                

Our New York Courts have long maintained that a Judge or a Court has the duty to preside over and control judicial proceedings in public trial consistent with the demands of decorum and due process, (People v. Culkin, 248 N.Y. 465, 162 N.E. 487; People v. Mendola, 2 N.Y.2d 270, 276, 159 N.Y.S.2d 473, 140 N.E.2d 353; People v. Hargrove, et al, 60 A.D.2d 636, 637, 400 N.Y.S.2d 184; People v. Hagan, 24 N.Y.2d 395, 397, 300 N.Y.S.2d 835, 248 N.E.2d 588; and see, U.S. v. Fay, 350 F.2d 967), where it was held that the constitutional right to a public trial is subject to the power of a Judge to preserve the fairness and orderliness of court proceedings.

That there is clearly an inherent discretionary power in our courts to preserve order and decorum in our courtrooms and in the pursuance of such power, to protect the rights of all parties and witnesses and generally to further the administration of justice cannot be questioned, (People v. Jelke, 308 N.Y. 56, 63, 123 N.E.2d 769; Matter of Peck v. Stone, 32 A.D.2d 506, 304 N.Y.S.2d 881, and see Bowers, Judicial Discretion of Trial Courts [1931], 262, pp. 296-297; 6 Wigmore, op. cit., p. 338; 1 Bentham, op. cit., p. 541 et seq.).

These long revered obligations to maintain court and/or courtroom decorum have been incorporated into Canon 3A(2)-Code of Judicial Conduct-New York State Bar Association, (Appendix to New York Consolidated Laws Service Judiciary Law Volume 19A), and further codified by the Appellate Division of the Supreme Court in the Second Judicial Department in its Special Rules Concerning Court Decorum (22 NYCRR Part 700-Special Rules Concerning Court Decorum--Appellate Division, Supreme Court, Second Department).

Relevant portions of Part 700 state:

" § 700.2 Importance of Decorum in Court

The courtroom, as the place where justice is dispensed, must at all times satisfy the appearance as well as the reality of fairness and equal treatment. Dignity, order and decorum are indispensable to the proper administration of justice. Disruptive conduct by any person while the court is in session is forbidden."

" § 700.3 Disruptive Conduct Defined

Disruptive conduct is any intentional conduct by any person in the courtroom that substantially interferes with the dignity, order and decorum of judicial proceedings",

and see, Appellate Division, Supreme Court, First Department at 22 NYCRR 604.1(b)(c), and (Breitbart v. Galligan, 135 A.D.2d 323, 525 N.Y.S.2d 219 for an interpretation of that First Department Court Decorum Rule).

In determining what is conduct that can/or has disrupted courtroom decorum, it would seem that an affected court must employ an objective analysis, sifting the inadvertent innocent expression from other forms of individual or group expression.

To the end of preventing or correcting disruptive conduct, a court, as herein, must act immediately and in summary fashion, without the necessity of holding an evidentiary hearing, having the presence of counsel, granting of an adjournment and/or referring the matter to another Judge, etc., (Matter of Katz v. Murtagh, 28 N.Y.2d 234, 238, 321 N.Y.S.2d 104, 269 N.E.2d 816).

This principle of summary action has been codified in 22 NYCRR 701 Special Rules Concerning Exercise of the Judicial Contempt Power by the Appellate Division, Second Department, and by the Appellate Division, First Department at 22 NYCRR 604.2; and see, Penal Law 215.50(7) which provides for Criminal Contempt in the Second Degree and specifically states "On or along a public street or sidewalk within a radius of two hundred feet of any building established as a courthouse, he calls...