People v. Marsh
| Decision Date | 25 June 1965 |
| Citation | 46 Misc.2d 777,260 N.Y.S.2d 893 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. James E. MARSH, Defendant. |
| Court | New York City Court |
Frank Hogan, Dist. Atty., by Irwin Rochman, Asst. Dist. Atty., for the people.
Anthony F. Marra, New York City, Rae Selwyn, of counsel, for defendant.
The facts in this case are simple. The legal question is uncomplicated. The problem is to arrive at the answer. For there is novelty here; and analysis can stem, not from direct precedent, but from trends indicated by the few cases having applicability.
Prior to a 1963 legislative change in Sec. 177, subd. 1 of the Code of Criminal Procedure there could be no reason to write. It would suffice to cite as decisive People v. Dreares (15 App.Div.2d 204, 221 N.Y.S.2d 819, aff'd 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812). But the District Attorney says that that holding is no longer conclusive. We shall see.
Defendant was arrested on a charge of disorderly conduct--an offense under Sec. 722, subd. 2 of the Penal Law. After the arrest he was searched. Contraband was found on his person. He was then charged with its illegal possession--a misdemeanor under Sec. 1747-d of the Penal Law. On the trial of the first of these charges, defendant was acquitted. The trial of the second charge was begun before me. The arresting officer having been sworn, defendant's counsel moved to suppress the evidence (the contraband found by the officer after the arrest for disorderly conduct) and to dismiss the second charge under Dreares, supra.
Did the change made by the legislature in 1963 to Sec. 177 of the Code of Criminal Procedure alter the import and intendment of the holding in Dreares? For up to then an acquittal of the charge involved in the original arrest ipso facto invalidated the search which revealed the unrelated basis of the second charge.
Sec. 177 of the Code of Criminal Procedure is the enabling legislation for arrests by peace officers. It was first enacted in 1881 (C. 442 L. 1881) and, except for additions in 1958 and 1960, not here pertinent, it remained unamended until 1963 (Ch. 580). Just prior to that came the Dreares case (decided by the Court of Appeals on April 26, 1962). The District Attorney claims that the principal goal of the amendment was that case and secondarily 'to aid police officers in the performance of their duties after the decision of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, [81 S.Ct. 1684, 6 L.Ed.2d 1081.]'
Dreares was arrested in the New York City subway on a charge of loitering--an offense under Sec. 1990-a, subd. 2 of the Penal Law. He forcibly resisted the arrest. In so doing he inflicted a minor injury to the arresting officer. He was thereupon charged with the original offense and assault in the third degree--a misdemeanor under Sec. 244 of the Penal Law. He was acquitted of the offense, which was tried first. Later, by separate trial, he was convicted of the misdemeanor assault charge. The Appellate Division, First Department, reversed the conviction. That decision was affirmed by the Court of Appeals without opinion.
Judge Breitel, writing below, stated that the acquittal of the loitering charge raised 'the issue as to the lawfulness of the arrest in which defendant forcibly resisted the transit officers * * * Defendant's prior acquittal of the crime for which he was arrested consequently established the arrest to have been unlawful, and he was therefore entitled to resist such an arrest with reasonable force (People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238).' People v. Dreares, 15 A.D.2d 204, at p. 206, 221 N.Y.S.2d 819, at p. 821.
When this ruling was made and later affirmed, Sec. 177, subd. 1 of the Code of Criminal Procedure read in part: The 1963 amendment added 'or where a police officer * * * has reasonable grounds for believing that a crime is being committed in his presence.' The point made by the District Attorney is that Judge Breitel referred to the loitering charge as a 'crime' and the amendment also refers to 'crime'. Therefore if the 'offense' of disorderly conduct here is a 'crime' within the purview of the amendment, the acquittal is not 'determinative' of the lawfulness of the original arrest.
Deferentially this argument strains contextual interpretation. While assuming the purpose of the amendment argued by the District Attorney, 'with the existing methods of legislation, there is very little security that the final expression of the lawmaker's intention will be apt, adequate or even consistent * * * [and the Court's duty is to] develop and mould it as interpreters [and not] create it as legislators' (Sir Frederick Pollock's lecture to the law faculty in the University of London in 1929 entitled 'Judicial Caution and Valour' 45 L.Q.Rev. 293).
The use of the word 'crime' by Judge Breitel in Dreares is generic. That he referred to an offense (which it is) as 'crime' indicates that fact. The statute, too, contemplates the same general category in subdivision 1. For no act or omission is a crime unless some statute makes it so (Section 22, Penal Law; People v. Knapp, 206 N.Y. 373, 380, 99 N.E. 841, 843). There are statutes which ascribe to certain actions a mild term like 'offense', 'infraction' or 'violation' in the same context of the word 'unlawful' which generally connotes a penal act. Not all of these are crimes in a sophisticated sense. A crime is defined as 'an act or omission forbidden by law, and punishable upon conviction by:' six categories of punishment (Sec. 2, Penal Law). The two divisions of crimes are: a felony (punishable by death or a state prison imprisonment) 'any other crime [being] a 'misdemeanor". From the latter, for instance, are excluded acts defined as 'infractions' by the Vehicle and Traffic and Conservation Laws; for otherwise even a parking violation might be a misdemeanor . The nature of punishment determines the grade of 'crime' (People v. Lyon, 99 N.Y. 210, 216-217, 223-224, 1 N.E. 673, 674, 678, 679; People v. Hughes, 137 N.Y. 29, 34, 32 N.E. 1105, 1106; People v. Kaminsky, 208 N.Y. 389, 102 N.E. 515) and this principle must be strictly adhered to (People ex rel. Cosgriff v. Craig, 195 N.Y. 190, 196, 88 N.E. 38, 40).
Here there is no question that the alleged 'crime' is only an 'offense'. Penal Law Sec. 722 specifically so states under its heading of 'Disorderly Conduct': 'Any person who * * * commits any of the following acts shall be deemed to have committed the offense of disorderly conduct * * *.' (Italics added) Sec. 177, subd. 1 of the Code of Criminal Procedure and reference to 'crime' in Dreares cannot be tortured in construction to obfuscate the obvious distinction so clearly defined. It should not be confused so as to eradicate the line of demarcation between substance and procedure. '* * * [A]n offense is in the nature of a crime and the same rules of law and procedure are to be followed as where the defendant is charged with a crime' (People v. Gilbert, Sp. Sess., 12 N.Y.S.2d 632, 635). '* * * they are tried like misdemeanors * * * and to them, as to 'offenses', there should be applicable the criminal-law rules of presumption of innocence and necessity of proof of guilt beyond a reasonable doubt' (People v. Hildebrandt, 308 N.Y. 397, 398, 400, 126 N.E.2d 377, 378, 49 A.L.R.2d 449).
The 'offense', then, of disorderly conduct, remains simply and solely that by statute; and no attempt to convert it semantically into a more serious unlawful act so as to encompass the sanctions of good police work, though unconstitutional behavior of law enforcement, will succeed.
As for interference with proper law enforcement by reason of the exclusionary principles of such cases as Mapp v. Ohio, 367 U.S. 643, et seq., 81 S.Ct. 1684, 6 L.Ed.2d 1081, the current error in thinking, both in lay and legal circles, is that the criminal courts should be an adjunct of law enforcing agencies--props to substitute for constitutional inadequacies or bolster errant officers' inefficiencies and, sometimes, overzealousness. This is to be regretted. Courts are not fostered to take sides. If impartiality is to be taken from them by reason of public pressure engendered by publicity given to a small percentage of newsworthy cases, then evil days are upon us. No one can thus be protected; and the presumption of innocence, so jealously to be guarded, will be diluted beyond recognition. And Mapp itself did not materially affect results of law enforcement. (Sobel, Crime in New York City, Brooklyn Law Review, December, 1963). Nor should any Court decision discourage the laudatory police work which I openly acknowledge. The difficulties encountered by the police are neither caused nor condoned by courts. It is just the way of democracy trying desperately to weigh the values of the individual in relation to the people generally.
A Court must interpret the laws as they are found, despite its negative belief in the efficacy or value of the legislation or its basic disagreement with that Court's standards. A Court must have courage to do so, even if the shading is in the penumbra of different thought. Conformation is not an end in itself. All judicial thinking and pronouncement, however, must be attuned to the times. More succinctly it has been said that:
'The duty of the Court is to keep the rules of law in harmony with the enlightened common sense of the nation. Such a duty, being put upon fallible men, cannot be performed with invariable and equal success. It is a matter of judgment, knowledge of the world,...
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Chirieleison v. City of New York
...Crim.Pro., § 177 (as in eff. in 1967 (see L.1967, ch. 681, § 37)); and present Penal Law, §§ 10.00, 240.20; see, also, People v. Marsh, 46 Misc.2d 777, 260 N.Y.S.2d 893; cf. People v. Williams, 25 N.Y.2d 86, 302 N.Y.S.2d 780, 250 N.E.2d 201; People v. Dreares, 15 A.D.2d 204, 221 N.Y.S.2d 81......