People on Complaint of Fahn v. Rockwell

• Citation: 38 Misc.2d 645,237 N.Y.S.2d 223
• Parties: PEOPLE of the State of New York on the complaint of Lester FAHN v. George Lincoln ROCKWELL, Defendant.
• Decision Date: 16 January 1963
• Court: New York City Court

Page 223

237 N.Y.S.2d 223

38 Misc.2d 645

PEOPLE of the State of New York on the complaint of Lester FAHN

v.

George Lincoln ROCKWELL, Defendant.

New York City Criminal Court, New York County, Part 7B.

Jan. 16, 1963.

No appearance for the People.

Vincent Mannino, Brooklyn, for defendant.

MILTON SHALLECK, Judge.

Over 2 1/2 years ago--on June 28, 1960--a New York Supreme Court Justice, sitting as a Magistrate in the County of Kings, issued a warrant for the arrest of George Lincoln Rockwell, the defendant. It was returnable in this part of the court. ¹

The warrant was based on an affidavit (complaint) executed by one Lester Fahn. Both resulted from the following background facts:

Defendant, self-styled leader of the American Nazi Party ², applied for a permit to speak in Union Square Park on July 4, 1960. It was denied him by the Commissioner of Parks. He brought a proceeding under Article 78 of the Civil Practice Act to review such denial. On June 22, 1960 the hearing in the proceeding was held. A disorder evolved therefrom, the New York Times of June 23, 1960 reporting that it reached 'the proportions of a riot', occurring 'during a five minute recess when Mr. Rockwell showed up in the Rotunda for television interviews--Television cameras were tipped over and several persons were knocked to the ground--A riot call to Police Headquarters soon brought 16 patrolmen and two sergeants to the scene. * * * However, court security guards crowded around Mr. Rockwell and he was hustled into 'protective custody' in a room off the Rotunda. * * *'

The complaint in part recites:

'That on the 22nd day of June, 1960, one George Lincoln Rockwell did commit the crime of disorderly conduct in violation of Sections 720 and 722, subdivisions 1 and 2 of the Penal Law of the State of New York, in that on the 22nd day of June, 1960, in a public place, to wit: the Rotunda of the New York County Supreme Courthouse, located at Foley Square, in the Borough of Manhattan, County of New York, City and State of New York, the defendant did violate the provisions of said sections in that he did by offensive and disorderly act, conduct and language, disturb and annoy and interfere with a large number of persons present in said public place, the aforementioned Rotunda of the New York County Supreme Courthouse and did in fact disturb the peace and provoke a breach of the peace in said place, by stating openly and publicly, in said place and in the presence of a large number of persons, many of whom were of the Jewish Faith, known to him to be persons of said Faith, many of whom being Jewish War Veterans of the Armed Forces of the United States, who were of the same Faith: 'That 80% of the Jews in the United States were traitors and all Jews were Communists; that the other 20% should be investigated. That all negroes were stooges of the Jews.'

'Further that said public remarks were made in full view, presence and hearing of a large number of citizens of the Jewish Faith and of the Negro Race and other Faiths and Races and that upon a number of people objecting to such scurrilous, defamatory, slanderous and false remarks, all of which defendant knew to be false, untrue and a slander of large numbers of patriotic Americans of Jewish Faith and of the Negro Race, the said defendant continued to make and repeat the above-mentioned false, derogatory, dafamatory and untrue statements whereupon a breach of the peace did in fact occur in that a number of the persons therein did attempt to physically assault and restrain the said defendant, George Lincoln Rockwell, and a large number of police were required to restore order in said public place, all of which conduct was in violation of the Statute in such cases made and provided for.'

Section 720 of the Penal Law deals with disorderly conduct as a misdemeanor. It provides in part that 'any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place * * * or who shall disturb or offend * * * or * * * by any disorderly act, language or display, although such act, conduct or display may not amount to an assault or battery shall be deemed guilty of a misdemeanor.'

Section 722, subdivisions 1 and 2 of the Penal Law state that: 'Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior; 2. Acts in such a manner as to annoy, dissurb, interfere with, obstruct, or be offensive to others.'

Since the issuance of the warrant, defendant, according to his counsel, has never 'actually come in' to the state, although 'he has flown over it.' The warrant has never been executed because of defendant's continued absence from New York. He has never been arraigned. He has never pleaded to the charges above set forth. He did, however, appeal to the Appellate Division from the adverse decision on the review of his application for a permit to speak, eventually succeeding in the Court of Appeals (Rockwell v. Morris, 10 N.Y.2d 721, 219 N.Y.S.2d 268, 176 N.E.2d 836 decided June 9, 1961).

As for the warrant itself, defendant remained aloof for a year or so after his civil victory. Then his counsel 'made a verbal motion before' another judge of this Court to dismiss the complaint. He was advised that the question should rightfully be decided by the Supreme Court Justice who issued the warrant. But, on proper written motion before said Supreme Court Justice, the latter referred the matter back to this Court on July 22, 1962, volunteering gratuitous language (in denying the motion without prejudice) that an attack 'on the sufficiency of the complaint * * * may be made there either upon a general or a special appearance.'

Defendant's counsel alone is now before this Court on papers designated as 'Notice of Motion (demurrer) * * *', not originally reciting any special appearance on behalf of the defendant. ³ The impelling reasons for this procedure is stated by counsel:

'The defendant is afraid to come to New York to exercise his right to free speech. He is afraid he will be arrested. He fears bail will be set too high; that he will languish too long in durance vile; that he will be framed and that he cannot get justice in our town. * * * Must the defendant subject himself to the inconvenience, expense and ignominy of arrest and imprisonment before he can attack the legality and validity of the complaint herein?'

I summarize my reactions to, and my conclusions upon, these reasons verbally imparted more specifically to defendant's counsel on the argument: They are unimpressive; they are fallacious; they are unsupportable. I shall not further dwell thereon. The minutes of the argument speak for themselves. At least the defendant does not now apparently fear an audience in New York despite the other statements by counsel in his moving papers that in the last encounter with the public they 'knocked him down, punched and kicked him in and about the face and body.' ⁴

Three questions alone confront the court on this motion: (1) May counsel appear specially to demur? (2) Is this demurrer timely brought? and (3) Is the affidavit (complaint) legally sufficient on its face to support the issuance of the warrant herein?

1. The referring Supreme Court Justice invited defendant to renew his motion in this court 'either upon a general or a special appearance.' There are two other cases which tangentally state that an attack on the sufficiency of an information may be made by special appearance. ⁵ (People v. Talarico, City Co., 72 N.Y.S.2d 39, 40; Francisco v. Little Falls Dairy Co., 163 Misc. 165, 170, 296 N.Y.S. 956.)

With due deference to the learned justices who were the progenitors of these pronouncements, I would consider their statements sui generis, to be acknowledged as having been made, but not to be followed.

Procedures in the Criminal Courts are governed solely by the Code of Criminal Procedure. It is the bible of all legal operative methods which guide both court and counsel. With great particularity, in many sections, each step in criminal matters is set down in minute detail. Yet no section deals with such an office as 'special appearance.' In this respect it differs from practice in civil courts which specifically recognizes such an appearance. ⁶ The distinction is an understandable one.

A special appearance in a civil action is interposed after the defendant in a case is apprised of the complaint against him by service thereof upon him. In that kind of proceeding he can challenge the jurisdiction of the court; but he already knows what the claim is against him. He can then refuse to appear generally until the question of jurisdiction is determined upon his 'special appearance.'

That is not what happens in a criminal proceeding, such as the one before this court now. The court must first acquire jurisdiction over the subject matter. This is done when the complaint or information is filed (People ex rel. Mertig v. Johnston, 186 Misc. 1041, 62 N.Y.S.2d 429; ⁷ People v. Lee, 151 Misc. 431, 432, 272 N.Y.S. 817, 819). ⁸ But that step only permits a warrant to be issued to bring the defendant before the court (Shappee v. Curtis, 142 App.Div. 155, 127 N.Y.S. 33). ⁹ Prior to defendant's appearance before the court either by the execution of the warrant, by voluntary appearance, by response to a summons or even an illegal arrest (People ex rel. Mertig v. Johnson supra; People v. Perrin, 170 App.Div. 375, 377-378, 155 N.Y.S. 698), ¹⁰ the defendant has not officially been notified of the charge. At the time of appearance the court, concomitantly, has jurisdiction over the person of the defendant as well.

When the defendant is brought before the court, he is arraigned. He is advised of the charge against him. He...