Baisch v. State, 53334

• Decision Date: 16 January 1974
• Docket Number: No. 53334,53334
• Citation: 76 Misc.2d 1006,351 N.Y.S.2d 617
• Court: New York Court of Claims
• Parties: Ronald BAISCH, Claimant, v. The STATE of New York, Defendant. Claim

Page 617

351 N.Y.S.2d 617

76 Misc.2d 1006

Ronald BAISCH, Claimant, v. The STATE of New York, Defendant.

Claim No. 53334.

Court of Claims of New York.

Jan. 16, 1974.

[76 Misc.2d 1007] Irwin Birnbaum and Michael W. Harris, for claimant.

Louis J. Lefkowitz, Atty. Gen., by James G. Di Stefano, Asst. Atty. Gen., for the State.

DECISION

ALBERT A. BLINDER, Judge.

This is a tort claim for false arrest and false imprisonment.

A Notice of Intention to file a claim was filed with the Clerk of the Court on November 6, 1970; the claim was filed on January 12, 1971. Pursuant to the order of Hon. John P. Gualtieri, Judge of the Court of Claims, dated May 30, 1973 granting leave to claimant to amend, the claim was amended at trial to include the use of the term 'illegal'.

The facts are not in dispute. On August 6, 1970, the claimant was operating a 1959 Volkswagen van on the New York State Thruway. In the vehicle were five persons, three male and two female. They were apparently on their way to a 'rock festival' in Canada. In the vehicle, which was owned by claimant, were the following: a tent, sleeping bags, assorted food (canned, packaged, etc.), cooking implements and camping gear. At approximately 7:00 p.m., as the vehicle progressed on this journey, it was stopped by State Trooper Hotaling, who, after examining the claimant's license and registration, advised the claimant he was under arrest for violation of section 136 of the General Business Law (unlawful dispay of the American flag).

The vehicle was painted with the colors and design of the American flag; its front part was blue with white stars and its roof and sides had alternate red and white stripes. This paint job was, in the Trooper's opinion, a violation of section 136, as aforesaid, and which the State claimed was a violation of subdivision b thereof.

The claimant was promptly arraigned upon an information drawn up by the State Trooper before the Town Justice of the Town of Salina, County of Onondaga. ¹ The Town Justice ordered the vehicle impounded, allowed the entry of a plea of not guility and set bail in the sum of $5,000. Not being able to post the bail, an order for his detention was issued and the claimant was transported to Syracuse wherein he was incarcerated in the Public Safety Building Confinement Facility. The claimant was released on August 9, 1970 after bail was posted. Subsequently, claimant's vehicle was ordered released on September 23, 1970 and on December 23, 1970, the charges against the claimant were dismissed.

At the outset, the Court must rule on the defendant's renewal of a motion to dismiss the claim on the grounds that it was filed 91 days after the false arrest claim accured on August 6, 1970 (upon which motion decision was reserved at trial).

As Judge Gualtieri previously ruled on the first motion made pretrial by the defendant in his decision dated May 3, 1973, '(a) claim for false arrest accrues upon arraignment and release on bail. This claimant was released on August 9, 1970, and the notice of intention filed November 6 was within the 90-day period. Huff v. State, 27 A.D.2d 892, 278 N.Y.S.2d 12 (3rd Dept. 1967); Bomboy v. State, 26 A.D.2d 974, 274 N.Y.S.2d 744 (3rd Dept. 1966).' Also see Boland v. State of New York, 30 N.Y.2d 337, 341, 333 N.Y.S.2d 410, 413, 284 N.E.2d 569, 571 (1972); Vitello v. State of New York, 39 A.D.2d 792, 332 N.Y.S.2d 289 (3rd Dept. 1972); Dill v. County of Westchester, 4 A.D.2d 779, 165 N.Y.S.2d 623 (2nd Dept. 1957); Wolfe v. State of New York, 57 Misc.2d 777, 293 N.Y.S.2d 384 (Ct.Cls., 1968). The motion is therefore denied.

The claimant was charged with a violation of section 136 of the General Business Law.

The statute makes it a misdemeanor to desecrate the flag of the United States of America or the State of New York. The language of the statute is broad and general and because of its vagueness has been held unconstitutional in part. Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344 (C.C.A.2d, 1970), U.S. appeal filed 3--24--71 (70--102); Gwathmey v. Town of East Hampton, 437 F.2d 351 (C.C.A.2d, 1970).

The use of the flag as a decoration is not a desecration. Even if the flag were to be used in a symbolic way, there would not be grounds for an arrest without an overt act of contempt likely to create a breach of the peace. People v. Keough, 31 N.Y.2d 281, 338 N.Y.S.2d 618, 290 N.E.2d 819 (1972); cf. People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30, affd., 401 U.S. 531, 91 S.Ct. 1217, 28 L.Ed.2d 287, rehg, den. 402 U.S. 989, 91 S.Ct. 1646, 29 L.Ed.2d 157.

In Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), the Supreme Court held that verbal communication involving the flag is protected by the First Amendment, even if that verbal communication 'casts contempt upon' the flag. Most, if not all conduct associated with the United States flag is symbolic speech. Such conduct is normally engaged in with the intent to express some idea. Goguen v. Smith, 471 F.2d 88, 99 (C.C.A.1st, 1972).

Whether or not the claimant was expressing an idea by driving a van painted as a flag need not concern the Court. Such use of a flag is not illegal, Hoffman v. United States, 144 U.S.App.D.C. 156, 445 F.2d 226 (1971), and is quite common. See 'Who Owns the Stars and Stripes?', Time Magazine, July 6, 1970. Whatever the reaction of observers might be to many kinds of conduct involving the flag, a substantial portion of such conduct falls under the heading of First Amendment activities. ² Goguen v. Smith, Supra, 471 F.2d at p. 100.

The State relies on subdivision b of section 136 of the General Business Law as the authority which provided the State Trooper with probable cause for the arrest under section 177, subdivision 1 of the old Code of Criminal Procedure Law (now Criminal Procedure Law Sec. 140.10).

The applicable part of the statute (§ 136, subd. b) reads as follows:

'Any person who: * * *

'b. Shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away, or for use for any purpose, any article, or substance, being an article of merchandise, or a receptacle of merchandise or article or thing for carrying or transporting merchandise, upon which . . . shall have been printed, painted, attached, or otherwise placed, a representation of any such flag, standard, color shield or ensign, to advertise, call attention to, decorate, mark, or distinguish, the article or substance on which so placed, * * *

'Shall be guilty of a misdemeanor.'

When the arresting officer was asked if he saw any merchandise in the vehicle, he answered in the negative. His testimony indicated rather that he thought the sole elements of the crime consisted of the American flag being painted on the vehicle.

False arrest is largely synonymous with false imprisonment. Other than the limited aspect of an arrest being the taking of a person into custody that he may be held to answer for a crime, the torts are, in substance, identical. 22 New York Jurisprudence, False Imprisonment, Sec. 1; also see Houghtaling v. State of New York, 11 Misc.2d 1049, 1053, 175 N.Y.S.2d 659, 665 (Ct.Cls., 1958). Every false arrest is itself a false imprisonment, for the imprisonment begins at the arrest. Egleston v. Scheibel, 113 App.Div. 798, 99 N.Y.S. 969 (2nd Dept., 1906).

The law presumes an unlawful imprisonment in an arrest without a warrant, Woodson v. New York City Housing Authority, 10 N.Y.2d 30, 217 N.Y.S.2d 31, 176 N.E.2d 57 (1961), and in an action for false arrest or false imprisonment the existence of probable cause is a defense to be raised and proved by the State. Clark v. Nannery, 292 N.Y. 105, 108, 54 N.E.2d 31, 32 (1944); Krafft v. State of New York, 52 Misc.2d 35, 275...