People v. Biltsted, AP-9

• Decision Date: 31 July 1991
• Docket Number: AP-9
• Citation: 574 N.Y.S.2d 272,150 Misc.2d 872
• Parties: The PEOPLE of the State of New York v. Tauno BILTSTED, Max Blechman, Malachi Dean, Steven Englander, Csaba Puski, Paul Shay, Randy Stokes, Gerald Wade, Defendants
• Court: New York City Court

Page 272

574 N.Y.S.2d 272

150 Misc.2d 872

The PEOPLE of the State of New York v. Tauno BILTSTED, Max Blechman, Malachi Dean, Steven Englander, Csaba Puski, Paul Shay, Randy Stokes Gerald Wade, Defendants.

Criminal Court of the City of New York,

New York County, AP-9.

July 31, 1991.

Andrea Pincus with Charles Tebbe Student Attys., under the supervision of Holly Maguigan, Steven Zeidman, Washington Square Legal Services by NYU School of Law, Criminal Defense Clinic, New York City, for Tauno Biltsted.

Audrey Stone and Donna Lee Student Attys. under the supervision of Holly Maguigan, Steven Zeidman, New York City, for Max Blechman.

Julia Kuan and Michael Ruben Student Attys. under the supervision of Holly Maguigan, Steven Zeidman, New York City, for Malachi Dean.

Lisa Scolari, New York City, for Steven Englander.

Louis Schwartz, Brooklyn, for Csaba Puski.

Elliott Cohen, New York City, for Paul Shay.

Daniel Scott, New York City, for Randy Stokes.

Betty Bales and Robin Forrest Student Attys. under the supervision of Holly Maguigan, Steven Zeidman, Washington Square Legal Services by NYU School of Law, Criminal Defense Clinic, New York City, for Gerald Wade.

Robert M. Morgenthau, Dist. Atty. (Daniel Connolly, of counsel), New York City, for plaintiff.

LAURA SAFER-ESPINOZA, Judge:

Defendants have moved to dismiss the charges of unlawful assembly filed against each of them under Penal Law 240.10, stemming from incidents alleged to have occurred on May 1, 1990 in Tompkins Square Park.

Defendants contend that the unlawful assembly statute is facially unconstitutional, as vague and overbroad. The fundamental concern expressed by these defendants, i.e. that individuals about to exercise their rights of speech and assembly remain in doubt regarding the permissible scope of their behavior under Penal Law 240.10, serves to underline the overlap in the vagueness and overbreadth doctrines.

Specifically defendants argue that under a literal reading, the statute does not require any overt manifestation of a purpose to engage in violent and tumultuous conduct. Since intervention is permitted before such a manifestation, what constitutes the purpose to engage in violent and tumultuous conduct or to prepare for such conduct, is left to the subjective determination of law enforcement officials.

They contend that the portion of the statute concerning when an assembly has "developed" an unlawful purpose is particularly vulnerable to this criticism. If some portion of those assembled do develop an unlawful purpose, how is that to be determined, and what are the obligations of those individuals exercising their rights to peaceable assembly in order to escape being perceived as having the intent to advance that purpose?

Defendants argue that since no requirement of a "clear and present danger" or "imminent unlawful action" is embodied in the statute, its enforcement may result in violation of their constitutionally protected rights of speech and assembly, when they engage in activities such as rousing speeches, chanting slogans, burning effigies, or simply remaining in silence when it has somehow been determined that the assembly has developed an unlawful purpose.

As the People point out, New York's original unlawful assembly statute was enacted in 1909. The statute was revised in 1965, when two unlawful assembly offenses defined in the former Penal Law were replaced by P.L. 240.10. The statute is geared to riot in the second degree (P.L. 240.05) and is, in effect, an anticipatory offense with respect to that charge.

Further insight into the unlawful assembly statute is provided by the practice commentaries to P.L. 240.08--inciting to riot (Donnino, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 240.08, at 213):

"The crime of 'inciting to riot' newly defined in the 1965 revision, 'covers conduct in the riot area which does not amount to either the crime of "riot" or the crime of "unlawful assembly." A rabble rouser who urges a group of twenty people to go out and break windows in a [minority] neighborhood and acquires the acquiescence of at least four of them is guilty of unlawful assembly, even if the project does not materialize * * *. In the absence of such approval or cooperation, however, he is not guilty of unlawful assembly, for he has not assembled with four or more other persons for the pre-conceived or agreed purpose of engaging in riotous conduct [ § 240.10]. The instant section fills the indicated gap with the crime of "inciting to riot." ' (Denzer and McQuillan, Practice Commentary to 240.08, McKinney's Penal Law (1967)" (emphasis added).

New York's unlawful assembly statute has generated very little reported caselaw. Whatever cases do exist are far too dated to provide significant guidance (People v. Most, 128 N.Y. 108, 27 N.E. 970 (1891); Slater v. Wood, 9 Bosw. 15 (1861); Michaels v. Hillman, 111 Misc. 284, 181 N.Y.S. 165 (1920); People v. Westfall, 6 A.D.2d 732, 174 N.Y.S.2d 339 (1958); People ex rel. Mertig v. Johnston, 186 Misc. 1041, 62 N.Y.S.2d 429 (1946)). The two most "recent" cases dismissed the charges against the defendants, without discussing the issue of constitutionality (People on Information of Penree v. Garfield, 63 Misc.2d 79, 312 N.Y.S.2d 830 (1970); People v. Martinez, 43 Misc.2d 94, 250 N.Y.S.2d 28 (1964)).

The Court notes that in each of the three situations that may constitute the crime under Penal Law 240.10--(1) assembling with four or more persons for the purpose of engaging with them in tumultuous and violent conduct likely to cause public alarm; (2) assembling with four or more persons for the purpose of preparing to engage with them in such conduct; and (3) remaining at an assembly which has developed one of the above purposes with the intent to advance such purpose--the overt act required by the statute is that of assembly.

While it is clear that Penal Law 240.10 is far from unique in its reliance upon a defendant's purpose or intent to transform an otherwise innocent act into a criminal one (e.g. burglary, possession of a weapon with intent to use unlawfully); is it also true that the "act" required by this particular statute is one to which our federal and state constitutions extend protection as a fundamental right (U.S. Const., amend. I; N.Y. Const., Article I, Section 9).

It is beyond question that subsequent to the enactment of New York's original unlawful assembly statutes, the law concerning First Amendment questions evolved dramatically.

In those years, the "clear and present danger" test developed as the standard to determine when otherwise protected speech and advocacy could be found unlawful. It is also fair to say that a strengthening of that test so that it became a tool for the protection instead of the suppression of First Amendment activity moved from a dissenting to a majority position. Under the "clear and present danger" standard, the courts scrutinized the facts of particular cases to see whether a danger of bringing about the "substantive evils" that Congress had a right to prevent, justified suppression of the expression at issue (Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919): Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949)).

Neither the 1965 revision nor a 1967 amendment to Penal Law 240.10 was motivated by constitutional concerns (See former Penal Law Sections 2092, 2094). Following those revisions, however, in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the United States Supreme Court articulated its clearest and most protective standard concerning statutes which affected freedom of speech and assembly.

Noting that its previous decisions upholding criminal syndicalism legislation on the grounds that, without more, advocating violent means to effect political and economic change involves such danger to the security of the state that it may be outlawed, had been thoroughly discredited by later decisions, and focusing both on the nature of the restricted conduct and its likely results, the Court stated that:

"These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v. Ohio, supra, at 447, 89 S.Ct. at 1829); (emphasis added).

Finding that the Ohio Criminal Syndicalism Act purported to punish assembly with others to advocate the duty, necessity or propriety of violence as a means of accomplishing industrial or political reform, that statute was ruled unconstitutional. In doing so, the Court combined two standards of analysis which had previously been seen as competing: (1) a focus on the words or conduct to determine whether they constituted solely an incitement to law violation, and (2) the likelihood that lawless action would actually result.

The Court also took pains to point out that "statutes affecting the right of assembly * * * must observe the established distinctions between mere advocacy and incitement to imminent lawless action", emphasizing that "the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental" (Brandenburg v. Ohio, 395 U.S. supra, at 449 note 4, 89 S.Ct. at 1830 note 4, citing DeJonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937)).

In examining New York's unlawful assembly statute, this Court can certainly imagine a series of...