People v. Ferguson

• Decision Date: 10 January 1968
• Citation: 286 N.Y.S.2d 924,55 Misc.2d 823
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Herman Benjamin FERGUSON et al., Defendants.
• Court: New York Supreme Court

Page 924

286 N.Y.S.2d 924

55 Misc.2d 823

The PEOPLE of the State of New York, Plaintiff, v. Herman Benjamin FERGUSON et al., Defendants.

Supreme Court, Criminal Term, Queens County, Part I.

Jan. 10, 1968.

[55 Misc.2d 824] Lynn, Spitz & Condon, New York City, for defendants Ferguson and another for the motion, by Gene Ann Condon, New York City.

Eleanor Jackson Piel, New York City, for defendant Fred Fernandez.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendants Michelle Kourouma, and another, by, Leonard M. Marks, New York City, of counsel.

Beerman & Beerman, for defendant Ursula V. West, by, Isidore Beerman, New York City, of counsel.

Anthony F. Marra, (Legal Aid Society) New York City, for defendant Raymond Smith, by, Caroline Davidson, Kew Gardens, of counsel.

Frank Corrado, Kew Gardens, for defendant Clarence Milton Ellis, by Robert Bressler, Kew Gardens, of counsel, for the demurrer.

Thomas J. Mackell, Dist. Atty., Queens County (Sidney Baumgarten, Asst. Dist. Atty., of counsel), opposed.

MEMORANDUM

J. IRWIN SHAPIRO, Justice.

Thirteen of the seventeen defendants named in this indictment--Ferguson, Harris, Ellis, Stewart, West, McPherson, Samuels, Taylor, Smith, Fernandez, Haynes and the two Kouroumas--have interposed demurrers in writing to discrete counts of the indictment by which they are respectively charged with various crimes. Counts one and four charge all defendants with the crimes of advocacy of criminal anarchy and conspiracy to commit the crime of criminal anarchy; the fifth count charges thirteen of the defendants with the crime of conspiracy to commit the crime of arson in the third degree; and the other fourteen counts of the indictment charge different defendants with substantive crimes such as permitting premises to be used for assemblages of anarchists and the unlawful possession of firearms.

Defendants Ellis, West, Smith, and Fernandez, in separate demurrers, and the two Kouroumas in a single demurrer, demur to the first and fourth counts of the indictment upon the ground that the facts stated therein do not constitute a crime and that the indictment does not conform with the requirements of sections 275 and 276 of the Code of Criminal Procedure, and that (except for Ellis) those counts do not comply with sections 278 and 279 of the Code. Defendants West, Smith and Fernandez also demur to the fifth count of the indictment (charging conspiracy to commit arson) upon the same ground asserted as to the first and fourth counts, and defendants Smith and Fernandez also demur upon the ground that the grand jury did not have authority to inquire into the crimes charged. In separate demurrers, defendants Ferguson, Harris, Stewart, McPherson and Samuels demur to the respective substantive counts for possession of firearms with which they are charged (Ferguson, seventh count; Harris, tenth and eleventh counts; Stewart, twelfth and thirteenth counts; McPherson, sixteenth count; and Samuels, seventeenth count) upon the ground that the indictment as to those counts violates sections 278 and 279 of the Code of Criminal Procedure; and defendants Taylor and Haynes, also by separate demurrers, demur to the entire indictment upon the ground that it does not conform with the requirements of sections 278 and 279 of the Code of Criminal Procedure.

Section 275 of the Code of Criminal Procedure provides that an indictment shall contain:

'1. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties;

2. A plain and concise statement of the act constituting the crime, without unnecessary repetition.'

Section 276 of the Code of Criminal Procedure provides that the indictment shall be signed by the District Attorney, and may be substantially in the form set forth in that statute. Sections 278 and 279 provide, generally, that, except for specific situations therein set forth, the indictment must charge but one crime and in one form. Objections that an indictment does not conform to the requirements of sections 275 and 276 or of 278 and 279 of the Code must be taken only by demurrer. (People v. Conroy, 97 N.Y. 62, 70; People v. Klipfel, 160 N.Y. 371, 374, 54 N.E. 788, 790.) And section 323 of the Code of Criminal Procedure provides, so far as pertinent here, that:

'The defendant may demur to an indictment, or any count thereof, when it appears upon the face thereof, * * *

2. That the indictment does not conform substantially to the requirements of sections two hundred seventy-five and two hundred seventy-six; or

3. That more than one crime is charged in the indictment within the meaning of sections two hundred seventy-eight or two hundred seventy-nine; or

4. That the facts stated do not constitute a crime * * *.'

It has been said that the purpose of an indictment is to identify the charge against a defendant so that his conviction or acquittal may prevent a subsequent charge for the same offense and also to notify him of the nature and character of the crime charged against him so that he may be enabled to prepare a defense. (People v. Farson, 244 N.Y. 413, 417, 155 N.E. 724, 726; People v. Williams, 243 N.Y. 162, 165, 153 N.E. 35, 36.) To fulfill this function, and to satisfy the requirement in section 275 that the indictment contained 'a plain and concise statement of the Act constituting the crime,' An indictment must not only charge the crime claimed to have been committed but must also set forth the act constituting such crime, and the omission of the one or the other is fatal to its validity. (People v. Knapp, 147 A.D. 436, 446, 132 N.Y.S. 747, 757, affd. 206 N.Y. 373, 99 N.E. 841; also see People v. Corbalis, 178 N.Y. 516, 520--521, 71 N.E. 106, 108; People v. Kane, 161 N.Y. 380, 386, 55 N.E. 946, 949; People v. Klipfel, 160 N.Y. 371, 374, 54 N.E. 788, 789, supra; People v. Willis, 158 N.Y. 392, 396, 53 N.E. 29 30; People v. Peckens, 153 N.Y. 576, 586, 47 N.E. 883, 888.) In requiring a 'statement of the act constituting the crime,' the statute evidences a desire to protect the defendant from further prosecution for the same offense and also to inform the accused of the substantive act which may be proved under the indictment so as to enable him to prepare his defense. (People v. Dumar, 106 N.Y. 502, 510, 13 N.E. 325, 328; also see People v. Corbalis, supra, 178 N.Y. at pp. 520--521, 71 N.E. 106.) Thus, an indictment which charges a defendant with a crime merely in the language of the statute but does not contain a statement of the particular acts alleged to have been committed by defendant which constituted the crime does not comply with the requirement of section 275. (People v. Schultz, 301 N.Y. 495, 497, 95 N.E.2d 815, 816; People v. Zambounis, 251 N.Y. 94, 96, 167 N.E. 183, 184.)

In view of the several demurrers, it is in this posture of the law that the indictment must be examined.

CHARGES OF CRIMINAL ANARCHY AND

CONSPIRACY TO COMMIT THAT CRIME

As stated, the first and fourth counts of the indictment charge all defendants respectively with having committed the substantive crimes of advocacy of criminal anarchy and conspiracy to commit that crime. The first count charges, in three separate paragraphs and in the precise language of the statute (section 161, former Penal Law), that defendants committed the crime of advocacy of criminal anarchy as follows:

'The defendants * * *, acting in concert * * * on or about and between October 1, 1965 and June 19, 1967 * * * by word of mouth and writing did advocate, advise and teach the duty, necessity and propriety of overthrowing organized government by assassination of the executive officers of the government and by force and violence.

'That in pursuance and in furtherance thereof, the defendants * * * did print, publish, edit, issue and did knowingly circulate, distribute, and display papers, documents, books and other written and printed matter containing and advocating, advising and teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means.

'That in pursuance and in furtherance thereof, the defendants * * * did organize and helped to organize and did become members of and did voluntarily assemble with groups and assemblies of persons formed to teach and advocate the doctrine that organized government should be overthrown by force, violence or any other unlawful means.'

The fourth count charges defendants with the crime of conspiracy to commit the crime of advocacy of criminal anarchy in that, between the dates mentioned in the first count, they 'knowingly, wilfully, corruptly and unlawfully conspired, confederated and agreed with each other * * * to commit the crime of advocacy of criminal anarchy,' and that in furtherance of that conspiracy they committed nine enumerated overt acts.

Section 161 of the former Penal Law, in so far as it is applicable to the indictment herein, provides that the crime of advocacy of criminal anarchy is committed by any person who:

'1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or,

2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means; or,

3. Openly, wilfully and deliberately justifies by word of mouth or writing the assassination or unlawful killing or assaulting of any executive or other officer of the United States or of any state or of any civilized nation having an organized government because of his official character or any other crime, with intent to teach, spread...