People v. Arvio
| Decision Date | 20 May 1971 |
| Citation | 321 N.Y.S.2d 382,66 Misc.2d 474 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Cynthia Mallory ARVIO et al., Defendants. |
| Court | New York Justice Court |
Robert R. Meehan, Dist. Atty., of Rockland County, Frank P. Barone, Asst. Dist. Atty., of counsel, for the People.
Robert P. Kassel, Nyack, for defendants Cynthia Arvio, Blossom, Button, Okon and Trostle.
John E. LeMoult, New York City, for defendant Sarah Ann Arvio.
Defendants Best, Curtin, Delia, Doyle, Feuer, McCue, Riley, Stalonas and Torgan appearing pro se.
Defendants are charged with violating Section 195.05 of the Penal Law of the State of New York--obstructing governmental administration. The 15 informations separately state that the defendant 'did forcefully enter the waiting area of Selective Service Board Local #13, interfering with and disrupting the orderly course of business necessary for the induction process and did refuse to leave when requested to do so', these acts allegedly occurring at the Selective Service Board Number 13 in Spring Valley, New York on February 17, 1971. The defendants demanded a jury trial and requested that they be tried jointly. At the end of the People's case, defendants moved to dismiss the informations on three grounds:
1. That the conduct was legal as affording to the defendants the right to peaceably assemble and to petition the government for a redress of grievances, pursuant to the First Amendment of the U.S. Constitution and Article 1, Section 9 of the New York State Constitution.
2. That the court lacked jurisdiction because the Selective Service Act of 1967 provided exclusive jurisdiction for hearing violations of the Act in the federal court and because the New York statute did not apply to public officials or employees other than those of the state or its political subdivisions, or instrumentalities thereof.
3. That the People failed to prove a prima facie case.
The People's evidence as adduced from four village police officers and the supervisor of the local selective service board substantially stated that the 15 defendants (among six others nor tried herein) rushed into the Selective Service office, milled around the office, and swarmed over the desks in their quest of speaking to members of the local board then and there meeting in a separate room, and refused to leave when directed to do so by the supervisor, the chairman of the local board, and by two or more of the police officers who later arrived. The office consisted of a small reception area, a larger interior room where several clerks worked at their desks and in which file cabinets were situated, and a smaller room where the board members were meeting. The defendants are stated to have passed through a gate separating the reception area from the room where the clerks worked, the gate having a sign facing the reception area stating 'do not enter--authorized personnel only'. The supervisor testified that she and several other female clerks were frightened by the actions of the defendants which completely disrupted their work, and further, that confidental material was on the desk. The defendants were advised by one of the police officers that they would be arrested if they refused to leave. The defendants were in no manner violent and none of them is alleged to have shouted.
The first ground for dismissal, an alleged abridgement of the right to peaceably assemble for a redress of grievances, is untenable. Although this is one of four most important rights, indeed number one in our Bill of Rights, the place chosen to disseminate the views of a group of people must be public or a place to which the public customarily have access. It must also be a place that resembles a public thoroughfare in order to make it an appropriate place for the exercise of these rights. As further stated in Wolin v. Port of New York Authority, 2 Cir., 392 F.2d 83, cert. denied 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275, the Court should consider whether the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended make it an appropriate place for communication of views on issues of political and social significance.
It is clear that the private sector of a government office does not meet the above requirements or specifications. In a remarkably similar factual situation, People v. Kern, 56 Misc.2d 557, 289 N.Y.S.2d 71, approximately 17 people congregated in and in front of the office of the Rockville Center Urban Renewal Agency, late on a Friday afternoon, for the purpose of discussing certain grievances with its director. The director stated that the written list of grievances given to him were too voluminous to discuss at that time and he invited them to return the following Monday after he had an opportunity to consider them. Several of the group refused to leave after being directed to do so by the director and by a police officer, the office being closed for business at that hour. After several demands and refusal by the defendants, the latter were arrested and charged with the violation of a local ordinance. The court held against the defendants' claim that the First and Fourteenth Amendments to the United States Constitution protected their actions and sustained a lower court conviction. The motion to dismiss the subject informations on this ground is therefore denied.
Defendants' second ground for dismissal concerns itself with the question of jurisdiction in this court because of the very complex issue of pre-emption found in Article 6, Clause 2 of the United States Constitution, the supremacy clause. There are countless state and federal decisions on the subject of pre-emption by the federal courts so as to divest jurisdiction in the state courts. Fitzgerald v. Catherwood, 2 Cir., 388 F.2d 400, in discussing a prospective prosecution of an alleged violation of a New York State labor statute in a state court in New York, suggested that the history or general purpose of the particular federal and state statutes might be the basis for determining whether the state court should be pre-empted. In Com. of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, cited by defendants, the Supreme Court noted the fact that under the federal Smith Act, persons receiving...
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