People v. Ailey

• Decision Date: 04 January 1974
• Parties: The PEOPLE of the State of New York, etc. v. John S. AILEY and Michael S. Hamilton.
• Court: New York City Court

Page 981

350 N.Y.S.2d 981

76 Misc.2d 589

The PEOPLE of the State of New York, etc. v. John S. AILEY and Michael S. Hamilton.

City Court of Buffalo, Trial Term, Erie County, Part VIII.

Jan. 4, 1974.

[76 Misc.2d 590] Michael F. Dillon, Dist. Atty., of Erie County by Phillip Marshall, Asst. Dist. Atty., for the People.

John S. Ailey and Michael S. Hamilton, defendants pro se.

DECISION

ALOIS C. MAZUR, Judge.

The defendants herein were charged by a prosecutor's Information filed at the direction of the June 1973 Grand Jury of Erie County. Pursuant to said Information they were charged with Resisting Arrest. (Penal Law Sections 205.30, 20.00); Obstructing Governmental Administration (Penal Law Secs. 195.05, 20.00); Disorderly Conduct (Penal Law Secs. 240.20, subd. 3, 20.00) and Assault Third Degree (Penal Law Secs. 120.00, 20.00).

The defendants, for reasons of their own, were not represented by counsel, although they were given ample opportunity to be represented by counsel and to be provided with counsel at the expense of the people.

A jury trial was held on November 8, 1973 and the defendants were convicted of Resisting Arrest (Penal Law Sec. 205.30) and Obstructing Governmental Administration (Penal Law Sec. 195.05). The Court however, at the end of the People's case, dismissed the Disorderly Conduct and Assault Third Degree charges as a matter of law because the evidence herein was insufficient to indicate that the defendants intended or recklessly created the risk of public inconvenience, annoyance or alarm by use of abusive or obscene language or that they caused such physical injury, if any, as is contemplated by Penal Law Sec. 120.00 and Penal Law Sec. 10.00, subd. 9. (Essentially, in regard to the alleged scuffle herein involved, the only consequence, injury or damage to the alleged victims was that 'their jackets were torn and both (their) trousers were torn'. There was, however, evidence to the effect that one of the defendants was injured to such a degree as to require him to be taken to the hospital as a result of a head wound inflicted by a blackjack. As to the alleged obscene words, they were, if used, obviously fleeting and emotional and the People's witness admitted that he did not know which of the defendants spoke the words).

During legal arguments heard in the absence of the jury the court did express its hesitancy and doubts as to the propriety of giving this case to the jury and charging it that it was a question of fact whether an authorized arrest existed under the circumstances herein. Nevertheless, the court did permit the jury to deliberate upon the issues presented and the jury did bring in the verdicts indicated.

Thereafter, and prior to the scheduled sentencing and with sufficient notice to the District Attorney, the defendants moved to set aside the verdict of the jury. Although other sections of the Criminal Procedure Law have been referred to by the defendants, any may also be involved, it is very clear to the court and the People that the court is being asked to set aside the verdict pursuant to C.P.L. Sec. 330.30, subd. 1.

Before the evidence herein is summarized it is somewhat important to note that the defendants were not tried for, nor were they ultimately charged with, any offense for which they were allegedly and initially arrested. In other words, the underlying arrest, which gave rise to the Resisting Arrest, and Obstructing Governmental Administration charges (as well as the other charges and the entire confrontation) was not an offense included in the prosecutor's Information. (Apparently this is not required upon a fair reading of the Penal Law Sec. 205.30. It seems that the essential, in this regard, is that there be an authorized arrest under the rules of arrest and not that a defendant be indicted or tried on that for which he is arrested).

It should also be pointed out that the prosecutor's Information, while alleging the two separate offenses of Resisting Arrest and Obstructing Governmental Administration nevertheless alleges facts which clearly indicate that the central issue herein for both charges is the validity of the arrest involved. This, of course, is obvious in regard to the Resisting Arrest charge. And, while generally there may be numerous official functions of public servants which could conceivably be obstructed, the facts alleged in the prosecutor's Information clearly refer only to the 'official function of arresting the defendants'.

While the evidence herein is in parts somewhat conflicting, the court shall only summarize and consider testimony of the People's only witness, one Officer Anthony Knapik of the Buffalo Police Department.

It appears that on March 26, 1973, at approximately 4:00 p.m. Patrolman Knapik and his partner Patrolman Roesch were on duty in a patrol car on Jefferson Avenue in the city of Buffalo. When they passed the intersection of Jefferson and East Utica (a bus stop and a fairly busy intersection at this time of day) Patrolman Knapik, a passenger in the police car observed defendant Ailey distributing some literature on the northwest corner of said intersection. After they passed the intersection, Patrolman Knapik asked his partner 'to turn around to go back' for the purpose, as subsequent testimony revealed, to ask some questions. According to Patrolman Knapik, defendant was asked to see what was being distributed. Patrolman Knapik testified that he 'wanted to ascertain the nature of what he was distributing and who was distributing them' (The evidence is quite clear that there was, at this time, no other expressed reason for police involvement.)

Patrolman Knapik then testified that defendant Ailey did identify himself and even presented a driver's license as proof of identity. After this the officer testified, 'I told him that I had a duty to ascertain what he was distributing and who was distributing and if he didn't allow me to do so, I would place him under arrest'. At the time of this request defendant Ailey, allegedly, 'clutched the papers to his chest and said it wasn't for fascist pigs'. (Testimony of Patrolman Knapik)

Immediately thereupon, and without an opportunity to tell the defendant what he was being arrested for, a scuffle ensued and defendant Hamilton joined in, having crossed the street from his post at the southeast corner of the intersection. The results of this 'scuffle' or 'fight' have already been described above in regard to the actual injuries or damages sustained.

The evidence herein is eminently clear, as far as the People's version is concerned, that the police allegedly did not know the contents of the literature being passed out that day, that they received no complaints concerning the activities of the defendants and, at least as far as the arresting officers were concerned, that they did not know the defendants or their political philosophies.

The court shall, for the purpose of this motion, consider this emphasized version to be true, even though the literature being distributed had emblazoned on the front page thereof, the words 'Buffalo' and 'Red Star' and the symbol of a star, hammer and sickle, all in red ink and approximatley 1 1/4 inches in height.

Also, the court, for the purposes of this motion, is not considering the defendants' contention that they were selling, and not simply distributing, the literature in question and that the police were offered the literature if they paid for it like anyone else. This simply was not the version of the police.

What then was the authority, purpose and reason for the arrest herein? The only possible answer can be found in the words of the arresting officer when, he said: (after the defendant had identified himself and the officer admitted that he found nothing wrong with the proffered driver's license!) 'I told him that I had a duty to ascertain what he was distributing and who was distributing and if he didn't allow me to do so, I would place him under arrest'.

According to the police version, a fuller disclosure of the information relative to the arrest was apparently not possible because immediately upon refusing to give the officer a copy of the literature and upon defendant Ailey being told that he was 'under arrest', a scuffle ensued.

Assuming there was lawful authority for an arrest, this procedure could apparently suffice because of Criminal Procedure Law Sec. 140.15, subd. 2. Although this section requires that a certain procedure be followed, it need not be fully complied with if the arresting officer 'encounters physical resistance, fight or other factors rendering such procedure impractical'.

Finally, however, the defendants did learn, at the time of their very first appearance in court, that the arresting officers had arrested them for and charged them with violating Chapter 9, Section 24 of the Ordinances of the City of Buffalo, which provides:

'Resisting officer in discharge of duty. Any person who shall refuse to obey, or shall resist any officer or employee of the city in the discharge of his regular duty shall be subject to a fine . . ..'

As previously indicated, however, the above described charge, included in the originally filed accusatory instrument, was not, for reasons unknown, included in the final prosecutor's information involved herein.

Thus, the central issue herein is whether or not there was an authorized arrest, under the circumstances herein, for refusing to obey an officer in the discharge of his regular duty. (Chapter 9, Sec. 24, Ordinances of the City of Buffalo)

As applied herein, this ordinance appears to be of the same troublesome genre as Penal Law Sec. 240.35, subd. 6, which our state's highest court said was unconstitutional. (People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411) The Court of Appeals there dealt with a provision of law which required a person, under certain circumstances, to identify himself or give a 'reasonably credible account of his...