People v. Epton

• Decision Date: 16 May 1967
• Citation: 227 N.E.2d 829,19 N.Y.2d 496,281 N.Y.S.2d 9
• Parties: , 227 N.E.2d 829 The PEOPLE of the State of New York, Respondent, v. William EPTON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 9

281 N.Y.S.2d 9

19 N.Y.2d 496, 227 N.E.2d 829

The PEOPLE of the State of New York, Respondent, v. William EPTON, Appellant.

Court of Appeals of New York.

Decided May 16, 1967.

Eleanor Jackson Piel and Sanford M. Katz, New York City, for appellant.

Frank S. Hogan, Dist, Atty. (Milton M. Stein and Michael Juviler, New York City, of counsel), for respondent.

Henry Winestine and Osmond K. Fraenkel, New York City, for New York Civil Liberties Union, amicus curiae.

SCILEPPI, Judge.

The defendant, William Epton, has been found guilty on three counts of a four-count indictment. After a trial with a jury in the Supreme Court, New York County, he was convicted of conspiracy to riot (Penal Law, Consol.Laws, c. 40, §§ 580, 2090), conspiracy to commit the crime of advocacy of criminal anarchy (Penal Law, §§ 160, 161, 580), and advocacy of criminal anarchy (Penal Law, §§ 160, 161). A fourth count, charging defendant with the substantive crime of riot, was dismissed by the trial court for lack of evidence as to any direct, causal connection between Epton's activities and the Harlem riots of the Summer of 1964. Defendant was sentenced to one-year concurrent sentences on the three counts on which he was found guilty.

The defendant, a self-acknowledged Marxist and president of the Harlem 'club' of the Progressive Labor Movement, a splinter communist club dedicated to violent revolution, was shown by the evidence on his trial to have been active in the Harlem community for many months prior to the 1964 riots. His activities before the riots, however, appear largely to have been limited to formation of a small cadre of followers, who, presumably, would play leadership roles in the eventual revolution toward which their movement was directed. There is no evidence in the record that Epton or his party at any time had a substantial following in the community, and one gets the distinct impression on reading the record that, had it not been for the apparently spontaneous build-up of pressures within the Negro ghettoes of New York City in the Summer of 1964, following the killing of a 15-year-old Negro boy by an off-duty police lieutenant, Epton and his group might well have continued little noticed and of scant significance to anyone but themselves. There is, likewise, no evidence here that the defendant or his alleged co-conspirators had any hand in causing the riots that began on the evening of July 18, 1964, and it would appear that it was not until May, 1964, when tensions in Harlem had already heightened over the issue of police brutality, that Epton and the others seized upon the notion that this unrest in the community might be utilized by them in developing a mass following.

On the afternoon of the 18th, just before the riots began, Epton took to the streets of Harlem preaching his gospel of revolution and calling for organized resistance to the police. Addressing an audience numbering about 50 persons, the defendant spoke of the need for violent action:

'(W)e'll begin a campaign to organize a mass demonstration against the cops somewhere in this city. As it stands now, many organizations are talking and planning of where this demonstration is going to take place and we're not saying it's going to be a peaceful demonstration * * *. They (the cops) declared war on us and we should declare war on them and every time they kill one of us damn it, we'll kill one of them and we should start thinking that way right now * * * because we had better stop talking about violence as a dirty word * * *.

'If we're going to be free, and we will not be fully free until we smash this state completely and totally. Destroy and set up a new state of our own choosing and of our own liking. And in that process of making this state, we're going to have to kill a lot of these cops, a lot of these judges, and we'll have to go up against their army. We'll organize our own militia and our own army * * *. Think about it because no people in this world have ever achieved independence and freedom through the ballot or having it legislated to them. All people in this world who are free got their freedom through struggle and through revolution. That's the way to gain freedom.

'We will take our freedom. We will take it by any means necessary and any means necessary as we know the beast that we are dealing with is that we have to create a revolution in this country and we will create a new government that is run by the people * * *. Those who are ready to come with us and stand with us and join the Harlem Defense Council * * * will go back into their blocks and organize their blocks into defense committees so when the deal goes through they will be able to be in the street tens of thousands strong ready to face that man. And we know how to use weapons just like they know how to use weapons. And when the deal goes down we have to be ready to confront them and beat them'.

In the days that followed, the Harlem headquarters of the Progressive Labor Movement became a bee hive of activity with the defendant exhorting those in attendance to organize their blocks to combat the police and with the defendant and his helpers feverishly getting out leaflets attacking the police. Much of this effort was directed toward generating enthusiasm for a mass demonstration planned for July 25th. If the People's evidence is to be believed, and the jury was entitled to believe it, the only conclusion that can reasonably be drawn is that in the week following the commencement of the riots on the 18th, Epton and the others named as his co-conspirators were engaged in doing their utmost toward keeping the disturbance going and their purpose in planning the demonstration for the 25th was to trigger further violence and rioting.

Specific examples of the sort of evidence which justifies, if not compels, the conclusion that defendant and his alleged co-conspirators had agreed to try to incite the people of Harlem to further and continued rioting are the following:

(1) Testimony by Detective Hart, the undercover police officer planted in defendant's group, to the effect that on July 19th, within sight and hearing of the ongoing riots, the defendant addressed a group of about 35 to 40 persons at the Harlem headquarters of the Progressive Labor Movement, stating that the people of the area would have to organize to combat the police and that there were various means of defeating the police, including 'suckering' the officers off the main avenues into the side streets away from other policemen where they could be killed one by one.

(2) Testimony by another police officer, Patrolman Johnson, who was present in plain clothes at the Progressive Labor Movement headquarters on the night of the 19th that he heard the defendant on that occasion, in answer to a question by a woman in the audience inquiring how they could fight the 'cops', suggest that their 'block captains' could teach them how to make weapons out of things in the street, informing his audience that when bottles are filled with a 'certain substance' (presumably gasoline) they become 'very effective' (as Molotov cocktails).

(3) Testimony by Hart that on the 21st the defendant told him that it was his wish to 'start something' over in Brooklyn in order to spread thin the police forces concentrated in Harlem, and he was sending speakers to a rally there planned for the following day.

(4) Wired with a 'minifon', Hart on the 20th recorded a conversation involving the defendant, Hart, and certain others, wherein, with respect to his planned demonstration set for the 25th, Epton said 'Oh, its going to lead to nothing but a slaughter, a massacre * * * a massacre.'

(5) On the 23d the defendant allegedly told Hart of his arrangements for the march set for the 25th and how he hoped the crowd would react violently to his expected arrest.

Coupled with this evidence is the defendant's admitted responsibility for the production of thousands of inflammatory posters and pamphlets (although the trial court did hold that the one pamphlet for which defendant denied responsibility, containing instructions on the manufacture of Molotov cocktails, had not been shown to be connected with the defendant's group and, thus, should be stricken as evidence). These publications seem clearly to have been designed to further arouse the already troubled people of Harlem. All in all, the people's evidence, most of which is not seriously disputed by the defendant, paints a picture of an organized campaign aimed at fostering continuance of the riots.

On this appeal, the defendant alleges many grounds upon which his convictions should be reversed, the principal ones being: (1) that his convictions on the counts in the indictment charging him with violation of sections 160 and 161 of the Penal Law and with conspiracy to violate the aforesaid sections cannot stand on the ground that sections 160 and 161 as construed by this court in People v. Gitlow (234 N.Y. 132, 136 N.E. 317) are an unconstitutional restraint on free speech; (2) that the Smith Act of 1940 (U.S.Code, tit. 18, § 2385) supersedes the enforceability of our criminal anarchy statute; (3) that his conviction for conspiracy to riot cannot stand because so much of the evidence against him on this count consisted of speech, therefore, a conviction on that count would amount to punishment directed solely at speech, and (4) that he was illegally convicted of the crime of conspiracy to riot since conspiracy to riot was merged into the substantive charge of riot which was dismissed by the court. Finding defendant's contentions to be without merit, we affirm.

When we last considered the constitutionality of sections 160 and 161 of the Penal Law, we held, and the Supreme Court of the United States affirmed over the vigorous objection of Mr. Justices Holmes and Brandeis, that they were constitutional (People v. Gitlow, supra, affd. sub nom. Gitlow v. New York, 268 U.S. 652, 45...