In the Matter of, Christopher M.
| Decision Date | 18 October 2010 |
| Docket Number | xx10 |
| Citation | 2010 NY Slip Op 20421 |
| Parties | In the Matter of, Christopher M., A Person Alleged to be a Juvenile Delinquent, Respondent. |
| Court | New York Family Court |
Respondent submits that the two charges in the petition, Unlawful Assembly and Riot in the 2 nd Degree, are facially insufficient and therefore, the petition against Christopher M. should be dismissed. Petitioner contends that the facts alleged in the petition are sufficient to establish each element of the crimes charged and the respondent's commission thereof, and therefore, the petition should not be dismissed.
The petition and the supporting deposition allege the following facts. At approximately 3:10 p.m. on June 2, 2010, police responded to a radio call and observed two groups of young people facing each other. The groups were near a school. The police affiant states that two groups were "threatening" each other. The affidavit does not recount the words that the officer deemed "threatening." Ten individuals comprised one group and twenty comprised the other. The respondent was seen in the group of twenty individuals. The affiant recounts that some members of the group were "reaching for their waistbands," without indicating that any weapons were seen. Members of the respondent's group possessed a golf club, a broomstick, and a belt. The person with the belt waived the belt in the air over his head. When the police attempted to disperse the groups, one of the members of the respondent's group threw a glass bottle, which shattered on the ground near the police. Pedestrians in close proximity to the groups crossed the street in the direction away from the two groups.
In order to be sufficient as a pleading, a juvenile delinquency petition must contain a plain and concise factual statement of each count, which asserts facts supporting every element of the crime charged and the respondent's commission thereof. Family Court Act § 311.1(3)(h). Reasonable cause to believe that the Respondent committed the crimes charged must be established by the facts alleged. See People v. Dumas, 68 NY2d 729, 506 NYS2d 319, 497 NE2d 686 (NY 1986). In making its determination regarding the sufficiency of each count in the petition, the Court views the petition in the light most favorable to the Presentment Agency. See, e.g., Matter of Lionel F., 152 AD2d 571, 543 NYS2d 696 (2d Dept. 1989).
As noted in the Commentary (Denzer and McQuillan, Practice Commentary to 240.08, McKinney's Penal Law (1967)) regarding the revised Penal Law, the offenses of Riot (Penal Law § 240.05), Unlawful Assembly (Penal Law § 240.10) and Inciting to Riot (Penal Law § 240.08)define a spectrum of conduct from actually engaging in riot, to the inchoate offense of assembly with others for the purpose of engaging in tumult and violence, to inciting others to riot.
An individual violates Penal Law § 240.05 when he, simultaneously with four or more persons, engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing public alarm. The petition fails to state any act of tumultuous and violent conduct engaged in by the respondent. See People v. Morales, 158 Misc 2d 443, 445, 601 NYS2d 261, 263 (NY Crim. Ct. 1993). Nor are any facts alleged which would support an inference that the respondent intentionally aided, solicited, importuned or commanded any other member of the group to engage in violent conduct. Penal Law § 20.00. Stated otherwise, where the prosecution relies upon a theory of accomplice liability, the pleading must allege facts specific to the respondent from which it may be inferred that the respondent shared a community of purpose with others engaged in violent and tumultuous conduct, which went beyond his mere presence at the scene. See People v. LaBelle, 18 NY2d 405, 412, 222 NE2d 727, 730 (NY 1966). Count one, alleging Riot in the second degree, is dismissed.
Similar considerations require that count 2, Unlawful Assembly, be dismissed. As noted by the Commentary, Unlawful Assembly is an inchoate crime, preparatory to riot, which is defined in terms of accomplice liability. An individual violates Penal Law § 240.10 when he assembles with four or more persons for the purpose of engaging or preparing to engage with them in tumultuous and violent conduct likely to cause public alarm, or when, being present at an assembly which either has or develops such purpose, he remains there with the intent to advance that purpose. It is the specific intent of the accused that distinguishes unlawful from lawful and therefore, constitutionally protected, assembly. And, as in the case of other forms of accomplice liability, the intent of the accused must be ascertained from acts and words attributable to the accused.
Because the only overt act proscribed by the Unlawful Assembly statute-"assembles"-potentially impinges upon the First Amendment right to freedom of assembly, the statute must be interpreted to conform with constitutional parameters. People v. Branham, 291 NY 312, 52 NE2d 881 (NY 1943); People v. Biltsted, 150 Misc 2d 872, 574 NYS2d 272 (N.Y.Crim.Ct. 1991). In Bilstead, the trial court rejected the argument that Penal Law § 240.10 was facially overbroad, under the constitutional test announced in Brandenburg v. Ohio, 395 U.S. 444 (1969). The Bilstead court observed that in order to avoid unconstitutional overbreadth in statutes which directly affect the rights of assembly and speech, there must be evidence of a clear and present danger of imminent violence or unlawful conduct. 150 Misc 2d 872, 574 NYS2d 272. The Bilstead court noting that the Unlawful Assembly statute was intended to close a gap between the offense of riot and of inciting to riot (Denzer and McQuillan, Practice Commentary to 240.08, McKinney's Penal Law (1967)), held that similar constitutional limits must apply to sanctions against the act of assembly as apply to speech. Id. That is, before an individual may be charged with Unlawful Assembly, there must be evidence of "actions (that) constitute an...
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