People v. Duryea

• Decision Date: 24 January 1974
• Citation: 351 N.Y.S.2d 978,76 Misc.2d 948
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York v. Perry B. DURYEA, Jr., et al., Defendants.

Page 978

351 N.Y.S.2d 978

76 Misc.2d 948

The PEOPLE of the State of New York v. Perry B. DURYEA, Jr., et al., Defendants.

Supreme Court, New York County, Part 42.

Jan. 24, 1974.

Frank S. Hogan, Dist. Atty., New York County, Alfred J. Scotti, Acting Dist. Atty. by Kenneth O. Conboy, Michael R. Juviler, Robert A. Goldschlag, Asst. Dist. Attys., of counsel, for the People.

Shea, Gould, Climenko & Kramer, New York City, Harold L. Fisher, Brooklyn by Milton S. Gould, Saul S. Streit, Ronald H. Alenstein, Richard L. Spinogatti, New York City, of counsel, for defendant, Duryea.

Francis Bergan, Albany, Catterson & Nolan, Port Jefferson by Francis Bergan, Albany and John M. Catterson, Jr., Port Jefferson, of counsel, for defendants, Kingston and Mund.

Segal & Hundley, New York City by Marvin B. Segal, New York City, of counsel, for defendant, Delli Bovi.

Joseph A. Martino, Elnora, for defendant, Mueller.

The New York Civil Liberties Union, amicus curiae by Burt Neuborne, New York City, of counsel.

John J. DeLury, as President of the Uniformed Sanitationmen's Association, and the Uniformed Sanitationmen's Association, Brooklyn, amicus curiae, Stroock & Stroock & Lavan, Morris Weissberg, New York City by Charles G. Moerdler, Lawrence M. Handelsman and Leonard M. Wasserman, New York City, of counsel.

BURTON B. ROBERTS, Justice:

This is a motion by the defendants pursuant to Section 210.25(3) of the Criminal Procedure Law to dismiss the indictment against them on the grounds that the statute they are charged with violating substantively and with conspiring to violate, Section 457 of the Election Law of the State of New York, is unconstitutional under both the Federal and New York State Constitutions. ¹

The indictment charges that the defendant Perry B. Duryea, Jr., the Speaker of the Assembly of the State of New York, and two of his aides, the defendants Henry A. Mund (Executive Assistant to the Speaker) and I. Lynn Mueller (Special Assistant to the Speaker), together with the defendant John E. Kingston, the Majority Leader of the Assembly, and the defendant Alfred A. Delli Bovi, a Member of the Assembly, conspired to promote the election of certain candidates to the Assembly in 1972 by means of acts constituting a violation of Section 457 of the Election Law (said conspiracy itself constituting a violation of Section 446 of the Election Law). The indictment also charges that these defendants committed the substantive crime of violating Section 457 of the Election Law.

According to the indictment, during a period of several months prior to the general election of 1972 there was in existence a political committee, known as the 1972 Republican Assembly Campaign Committee, with the objective of promoting the election of Republican candidates for the Assembly in that election. The defendant Kingston was the chairman of this committee, the defendant Mund was its treasurer, and the defendant Duryea maintained ultimate authority over all its political and financial decisions.

The indictment alleges that the defendants, on behalf of this committee, in order to promote the election of Republican candidates for the Assembly in the 1972 election in twelve 'marginal' assembly districts (districts where an analysis by defendants allegedly revealed that any 'appreciable' support for the Democratic candidate would cause the defeat of the Republican candidate), planned and carried out a scheme to distribute approximately 80,000 printed letters to enrolled Liberal Party voters in these districts, urging them to vote for the Liberal Party assembly candidates.

Part of this scheme, the indictment states, was to conceal the true source of these letters, which was the Republican Assembly Campaign Committee, by having the letters bear the signature of one Harold J. Relkin, over the designation 'Chairman, Action Committee for the Liberal Party'. It is alleged that Relkin, a resident of New Jersey, was neither a registered voter in New York nor held any office or title in the Liberal Party; that the purpose of the scheme was to encourage Liberal Party voters to vote their party affiliation, thereby promoting the election of the Republicans; that in each of the twelve districts chosen, some 6,500 copies of the letters were to be distributed; and that the letter was in fact disseminated in the last week of October, 1972, shortly before the election.

The statute that is the center of attention in this case is a relatively esoteric one, and should therefore be set forth at the outset. It provides as follows:

Section 457. Printing or other reproduction of certain political literature ²

No person shall print, publish, reproduce or distribute in quantity, nor order to be printed, published, reproduced or distributed by any method any handbill, pamphlet, circular, post card, placard or letter for another which contains any statement, notice, information, allegation or other material concerning any political party, candidate, committee, person Proposition or amendment to the state constitution, whether in favor of or against a political party, candidate, committee, person, proposition or amendment to the state constitution, in connection with any election of public officers, party officials, candidates for nomination for public office, party position, proposition or amendment to the state constitution without also printing or reproducing thereon legibly and in the English language the name and post-office address of the printer thereof and of the person or committee at whose instance or request such handbill, pamphlet, circular, post card, placard or letter is so printed, published, reproduced or distributed, and of the person who ordered such printing, publishing, reproduction or distribution, and no person nor committee shall so print, publish, reproduce or distribute or order to be printed, published, reproduced or distributed any such handbill, pamphlet, circular, post card, placard or letter without also printing, publishing, or reproducing his or its name and post-office address thereon. A violation of the provisions of this section shall constitute a misdemeanor.

The term 'printer' as used in this section means the principal who or which by independent contractual relationship is responsible directly to the person or committee at whose instance or request a handbill, pamphlet, circular, post card, placard or letter is printed, published, reproduced or distributed by such principal, and does not include a person working for or employed by such a principal.

The grounds for defendant's constitutional claims are that Section 457 violates the First Amendment freedoms of speech and association and of the press, the Fourteenth Amendment Due Process Clause, and the comparable provisions of the New York State Constitution, Article I, Sections 8 and 9 and Article I, Section 6, respectively. The applicable portions of these constitutional provisions are set forth in the margin. ³

The broad principles of constitutional law applicable to the attack on Section 457 on First Amendment grounds shall initially be summarized.

The First Amendment is the darling of the Constitution's nursery. Freedom of speech, it has been stated, 'is the essence of self government.' Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). Consequently, to whatever extent the law has established the gradation of constitutional rights, the First Amendment is held to occupy a 'preferred position' among the various guarantees of liberty. Saia v. New York, 334 U.S. 558, 561--562, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); cf. Kovacs v. Cooper, 336 U.S. 77, 90--96, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (concurring opinion her Frankfurter, J.).

The term 'preferred position' has two facets. It imports the weighty consideration that First Amendment freedoms must be accorded in balancing them against the countervailing interests which are alleged to underly encroaching statutes. It also means that the First Amendment has a character transcendent of mere parties and controversies in litigation. It is more than another rule of law that is the means to just a result. The pursuit of its highest aims is an end in itself.

To attempt a further grading of rights to those within the First Amendment is an unnecessary exercise; for, as Jefferson noted, the Framers "guard(ed) in the same sentence, and under the same words, the freedoms of religion, of speech, and of the press: insomuch, that whatever violates either, throws down the sanctuary which covers the others . . ." 8 Jefferson, Works 464--465 (Ford.ed.1904), quoted in Time, Inc. v. Hill, 385 U.S. 374, 400 n. 2, 87 S.Ct. 534, 548, 17 L.Ed.2d 456 (1967) (Black, J., concurring). Nevertheless, the free discussion of political affairs must be considered as among the most carefully protected of our liberties. It has been said that 'there is practically universal agreement that a major purpose of (the First) Amendment was to protect free discussion in government affairs' (Mills v. Alabama, 384 U.S. 214, 218--219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966)), and that we have a 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' (New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964).)

The primacy of the First Amendment, however, is not absolute. It was settled long ago that the Constitution does not provide for an unfettered right of expression. (See Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (Holmes, J.).) First Amendment freedoms are vital, but their exercise must be compatible with the preservation of the other essential rights of a free society which enjoys competing interests. (See Pennekamp v. Florida, 328 U.S. 331, 352--355, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); (concurring opinion her Frankfurter, J.); Dennis v. United States, 341 U.S. 494, 252, 71 S.Ct. 857, 95 L.Ed....