Lurie v. District Attorney of Kings County, Docket No. B12320
| Decision Date | 27 February 1968 |
| Docket Number | Docket No. B12320 |
| Parties | Application for a Writ of Prohibition by Ellen LURIE, Rosalie Stutz, Robert Nichol, John Powis, Mildred Pallay, Delores Costello, Milton Galamison, Babette Edwards, Marina Brooks, Vincent Negron, Dave Spencer and Thelma Hamilton, Petitioners, v. The DISTRICT ATTORNEY OF KINGS COUNTY, Respondent, to Prohibit said Respondents from conducting any further proceedings under Criminal Court Kings County/1966 and to order the said Criminal Court and its Members to Dismiss Forthwith the proceedings presently pending under said Docket Number. |
| Court | New York Supreme Court |
There is raised in this prohibition proceeding an issue of jurisdiction 'of the person' in criminal proceedings which has troubled all courts for many years.
In order that an offense may be prosecuted and judgment given, it is necessary that the court have jurisdiction Both of the subject matter and of the person. Jurisdiction of the subject matter is derived from statute; it can never be acquired by waiver or consent. Jurisdiction of the person may be obtained however by valid arrest with or without a warrant or by waiver or by consent.
The issue raised in this petition is whether a court may obtain jurisdiction of the person as a result of an unlawful arrest when the defendant seasonably objects, i.e., neither waives nor consents.
Petitioners here are a group of reputable citizens who by reason of service or profession are leaders in their community. They chose to express their discontent with the operation of our schools by a three-day 'sit-down' in the executive meeting room of the Board of Education. Such conduct constitutes either Unlawful civil disobedience or Lawful protest, depending of course on the facts and the law but also on one's point of view. In no sense however are they 'criminals' but unhappily the legal proposition which they advance must necessarily 'benefit' as well actual criminals including robbers, burglars and rapists.
In this Article 78 proceeding petitioners seek to prohibit the District Attorney and the Criminal Court from 'proceeding without jurisdiction' (CPLR 7803 subd. 2) i.e., because their arrest was unlawful, with the prosecution of an information charging them with the 'offense' of 'disorderly conduct' (old Penal Law, § 722 subd. 2).
Petitioners were arrested on December 21, 1966, on the third day of the sit-down, not by a police officer but by a 'private person' (an employee of the Board of Education) for the 'offense' of disorderly conduct committed in his presence. Before the recent amendment to the citizen's arrest statute (see Code Cr.Proc. § 183 prior to its amendment by L.1967 c. 681 eff. Sept. 1, 1967) a private person could only arrest for a 'crime' which by definition (old Penal Law, § 2) included felonies and misdemeanors but not 'offenses.'
It is this citizen's arrest for the 'offense' of disorderly conduct which petitioners contend was unlawful.
There are a few preliminary problems raised in the petition which require brief discussion.
Respondents questioned the right of Special Term to grant a writ of prohibition in the circumstances of this criminal case. I do not doubt that right. (Matter of Martinis v. Supreme Court, 20 A.D.2d 79, 86, 244 N.Y.S.2d 949, 959, revd. o.g. 15 N.Y.2d 240, 258 N.Y.S.2d 65, 206 N.E.2d 165; Matter of Fenster v. Criminal Court, 46 Misc.2d 179, 259 N.Y.S.2d 67 and cases cited.) However during oral argument the parties consented that I meet the merits without considering that threshold question.
Petitioners request that I order a trial of issues of fact (CPLR 7804(h)) to determine whether the alleged 'breach of the peace' was in fact committed 'in the presence' of the arresting citizen. Under the circumstances of this case, this would be in practical effect a determination of guilt or innocence since the commission of the offense was contemporaneous with the arrest. I doubt very much that the practice provision encompasses trial of issues of fact in prohibition proceedings. I would believe that it is restricted to the review of 'determinations' characterized as 'administrative.'
Petitioners also raise some First Amendment issues. But without resolution of issues of fact, I cannot consider these. The statute defining disorderly conduct is not On its face violative of any of the First Amendment freedoms by reason of vagueness or overbreadth; nor does it vest in the courts unbridled discretion to limit their exercise. (Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; cf. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210.) As construed or applied by a court to facts revealed at a trial, it may very well turn out that the statute in fact interferes with petitioners' constitutional rights to communicate ideas by 'nonverbal expression.' (People v. Martin, 15 N.Y.2d 933, 259 N.Y.S.2d 152, 207 N.E.2d 197, cert. den. 382 U.S. 828, 86 S.Ct. 64, 15 L.Ed.2d 72; People v. Penn, 16 N.Y.2d 581, 260 N.Y.S.2d 847, 208 N.E.2d 789, cert. den. 383 U.S. 969, 86 S.Ct. 1275, 16 L.Ed.2d 309; People v. Street, 20 N.Y.2d 231, 282 N.Y.S.2d 491, 229 N.E.2d 187; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210.) But resolution of these constitutional questions must await the trial.
Petitioners also raise Fourth Amendment issues. A lawful arrest is, of course, essential to a constitutional incidental search. (People v. Loria, 10 N.Y.2d 368, 373, 223 N.Y.S.2d 462, 466, 179 N.E.2d 478, 481.) Petitioners contend that an unlawful arrest is per se a violation of the Fourth Amendment. There have been some recent 'indications' (Wong Sun v. United States, 371 U.S. 471, 481, 83 S.Ct. 407, 9 L.Ed.2d 441; Collins v. Beto, 5 Cir., 348 F.2d 823) that an unlawful arrest is an unreasonable 'seizure' of the 'person.' But this would apply solely to arrests without 'probable cause' not to arrests violative of state Statutory standards such as at issue here. An arrest by a police officer or a private person for a misdemeanor or offense not committed 'in their presence' violates no constitutional standard, state or federal. Several state statutes authorize such arrests for 'past' misdemeanors.
Two issues only need to be considered.
1. The right of a private person to arrest for an 'offense' of disorderly conduct committed in his presence.
2. The power of a court to proceed with a prosecution after there is 'seasonably raised' objection to the court's jurisdiction of the person on the ground of unlawful arrest.
I consider briefly the contention of the petitioners that a 'private person' was not authorized to arrest for an 'offense.'
Petitioners are correct. On the date in issue (December 21, 1966) no statute or common-law rule gave to 'private persons' the right to arrest for any 'offense' including the offense of disorderly conduct constituting a breach of the peace (old Penal Law, § 722). The citizen's arrest provision of the Criminal Code section 183 was, however, amended in 1967 to permit such an arrest (L.1967, c. 681, § 41). That Both the old and new provisions were the result of legislative omission or indiscrimination does not affect the result.
When the Penal Code and the Criminal Code were adopted in 1881 (L.1881 c. 676; L.1881 c. 442) all 'crimes' were either felonies or misdemeanors. (Penal Code, § 4). Disorderly conduct was a misdemeanor. (Penal Code, § 675 as amended L.1891 c. 327; see also §§ 448, 451.) There were no 'offenses' in the Penal Code.
Understandably, the arrest statutes included in the contemporaneously adopted Criminal Code provided only for arrests for 'crimes'--not for 'offenses.'
The first 'offense' below the grade of misdemeanor added to the Penal Law was 'disorderly conduct' (Penal Law, § 722 added L.1923 c. 642; L.1924 c. 476). The Legislature neglected however to amend the Criminal Code's arrest statutes to include 'offenses.' No serious problem was created for police officers since many local laws, charters and ordinances authorized local police to arrest for 'breaches of the peace' which included 'disorderly conduct.' (See Old Penal Law, § 40; N.Y.C.Charter § 435 (); N.Y.C.Ann.Code § 435--11.0 ().) But a private person was not authorized by any Statute to arrest for 'offenses.' This was the law when the instant offense was committed and remained the law until the 1967 amendment of section 183. That amendment was intended solely to conform the Criminal Code with the new definitions in the Revised Penal Law (Penal Law, § 10.00). (But obviously it goes much too far in the opposite direction for it gives to private citizens the right to arrest for the pettiest of 'violations' committed in their presence.)
At common law police officers And citizens could arrest for breaches of the peace committed in their presence. (People ex rel. Kingsley v. Pratt, 22 Hun 300; People v. Phillips, 284 N.Y. 235, 237, 30 N.E.2d 488, 489; Carroll v. United States, 267 U.S. 132, 157, 45 S.Ct. 280, 69 L.Ed. 543.) However there is no common-law right to arrest in New York since the adoption of the...
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