State v. Biondolillo, 2011–830.

Citation55 A.3d 1034,164 N.H. 370
Decision Date28 November 2012
Docket NumberNo. 2011–830.,2011–830.
Parties The STATE of New Hampshire v. Samuel BIONDOLILLO.
CourtSupreme Court of New Hampshire

164 N.H. 370
55 A.3d 1034

The STATE of New Hampshire
v.
Samuel BIONDOLILLO.

No. 2011–830.

Supreme Court of New Hampshire.

Argued: Sept. 20, 2012.
Opinion Issued: Nov. 28, 2012.


55 A.3d 1036

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief, and Lisa L. Wolford, attorney, orally), for the State.

Law Office of Brandon D. Ross, PLLC, of Concord (Brandon D. Ross on the brief and orally) for the defendant.

HICKS, J.

164 N.H. 372

The defendant, Samuel Biondolillo, appeals his conviction, following a bench trial in the 6th Circuit Court—Concord District Division (Spath, J.), of disorderly conduct, see RSA 644:2, II(e) (2007). He argues: (1) that his conviction violates his constitutional right to free speech; (2) that the evidence is insufficient to sustain his conviction; and (3) that, for several reasons, the trial court committed plain error. We affirm.

I

The trial court could have found the following facts. On June 28, 2011, Concord Police Officer Garcia responded to a report that a man and a woman in a McDonald's restaurant were not attending to the needs of their child. He approached the couple to determine whether they were capable of caring for their child, but was interrupted by the defendant, who was sitting nearby. The defendant advised the couple not to talk to Garcia, stating, among other things, that "the police ruin peoples' lives." After Garcia attempted to explain to the defendant the purpose of his visit, the woman took the child to the bathroom and Garcia asked the man to step outside to discuss the matter without interruption from the defendant. While outside, Garcia learned from a dispatcher that there was an outstanding bench warrant for the woman, meaning Garcia would need to take her into custody.

After speaking with the man for a short time to determine whether he could care for the child alone, Garcia saw the defendant leave the restaurant. Officer Kayla

55 A.3d 1037

Buffis arrived and brought the woman outside. The defendant then approached to within an arm's length of the group and interrupted their conversation, asking the man whether he was okay, whether he wanted an attorney, and whether he wanted the interaction recorded. Garcia told the defendant he needed to back away and stop interfering with the investigation, but the defendant did not do so. After the defendant refused to leave despite having been told to do so several times,

164 N.H. 373

Garcia arrested him. The State charged him with obstructing government administration and disorderly conduct. The trial court found him not guilty of the former charge, but guilty of the latter.

II

The defendant first argues that his disorderly conduct conviction violates his right to free speech under Part I, Article 22 of the New Hampshire Constitution and the First Amendment of its federal counterpart. This argument presents a question of constitutional law, which we review de novo. State v. Marshall, 162 N.H. 657, 661, 34 A.3d 540 (2011). We first address the defendant's claims under the State Constitution, and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

The State and Federal Constitutions contain robust guarantees of free speech, but they do not offer absolute protection to all speech under all circumstances and in all places. See, e.g., Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) ; State v. Comley, 130 N.H. 688, 691, 546 A.2d 1066 (1988). The right of free speech under the State Constitution

may be subject to reasonable time, place and manner regulations that are content-neutral, narrowly serve a significant governmental interest, and allow other opportunities for expression. Even where a law regulates conduct generally, without addressing speech in particular, it nonetheless may effect an incidental regulation of speech that, like direct regulation, is constitutionally permissible if it does not exceed the bounds of the limited, content-neutral time, place and manner standard.

Comley, 130 N.H. at 691, 546 A.2d 1066 (citations omitted). Federal precedent employs the same standard to assess the constitutionality of restrictions on the time, place, and manner of expressive activities taking place in a public forum. See Clark, 468 U.S. at 293, 104 S.Ct. 3065 (Reasonable time, place, and manner restrictions "are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.").

RSA 644:2, II(e), the statute under which the defendant was convicted, provides that a person is guilty of disorderly conduct if he "[k]nowingly refuses to comply with a lawful order of a peace officer to move from or remain away from any public place." A "[l]awful order" under this statute means "[a] command issued to any person for the purpose of preventing said person from committing any offense set forth in this section ... when the officer has reasonable grounds to believe that said person is about to

164 N.H. 374

commit any such offense, or when said person is engaged in a course of conduct which makes his commission of such an offense imminent." RSA 644:2, V(a)(1) (2007). Here, the State contends that the defendant engaged in a course of conduct which made his commission of another variant of disorderly conduct imminent—"[e]ngaging in conduct in a public place which substantially interferes with a criminal investigation."

55 A.3d 1038

RSA 644:2, II(d) (2007). The defendant appears to contend that RSA 644:2, II(e) is unconstitutional both on its face and as applied to him; accordingly, we address each contention in turn.

A

We are not persuaded that RSA 644:2, II(e) is constitutionally deficient on its face. Our decision in Comley is instructive. The defendant in that case interrupted the inauguration ceremony of Governor John Sununu by shouting remarks about the Seabrook nuclear power plant. Comley, 130 N.H. at 689–90, 546 A.2d 1066. He was charged with the statutory variant declaring that a person is guilty of disorderly conduct if he "purposely causes a breach of the peace, public inconvenience, annoyance or alarm ... by ... [d]isrupting the orderly conduct of business in any public or government facility." Id. at 691, 546 A.2d 1066 (quotation omitted); see RSA 644:2, III(b) (2007). We rejected his State constitutional challenge, reasoning that, although the statute "may have [the effect of regulating speech] where a prosecution under [it] concerns conduct encompassing expressive activity," it "prohibits only that speech whose exercise, as distinct from its contents, interferes with the government's interest in preserving order in its business." Id.

As in Comley, RSA 644:2, II(e) does not specifically regulate speech, although "its application obviously may have such an effect where a prosecution under [it] concerns conduct encompassing expressive activity." Id. Its plain terms, however, satisfy Comley's three-part test. It does not target speech for its content, but rather aims only at persons who refuse to comply with an official command when that command is based upon an officer's objectively reasonable belief that the...

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4 cases
  • State v. Lilley, 2017-0116
    • United States
    • Supreme Court of New Hampshire
    • 8 Febrero 2019
    ...of free speech, but they do not offer absolute protection to all speech under all circumstances and in all places. State v. Biondolillo, 164 N.H. 370, 373, 55 A.3d 1034 (2012). We do not accept "the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the pe......
  • State v. Bailey, 2012–781
    • United States
    • Supreme Court of New Hampshire
    • 8 Agosto 2014
    ...the United States Constitution. This argument presents a question of constitutional law, which we review de novo . State v. Biondolillo, 164 N.H. 370, 373, 55 A.3d 1034 (2012). Part I, Article 22 provides: "Free speech and liberty of the press are essential to the security of freedom in a s......
  • Baer v. Leach
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • 24 Noviembre 2015
    ...Dominic was decided in 1977, before the New Hampshire legislature defined "lawful order" under RSA 644:2. See State v. Biondolillo, 164 N.H. 370, 378 (2012). Pursuant to that definition, Leach needed "reasonable grounds to believe" that Baer was engaged in a course of conduct that made his ......
  • Baer v. Leach, Civil No. 15-cv-065-JD
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • 24 Noviembre 2015
    ...Dominic was decided in 1977, before the New Hampshire legislature defined "lawful order" under RSA 644:2. See State v. Biondolillo, 164 N.H. 370, 378 (2012). Pursuant to that definition, Leach needed "reasonable grounds to believe" that Baer was engaged in a course of conduct that made his ......

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