People v. McLeod

• Decision Date: 18 April 1991
• Docket Number: AP-9
• Citation: 570 N.Y.S.2d 431,150 Misc.2d 606
• Parties: The PEOPLE of the State of New York v. Carl McLEOD, Defendant
• Court: New York City Court

Page 431

570 N.Y.S.2d 431

150 Misc.2d 606

The PEOPLE of the State of New York v. Carl McLEOD, Defendant.

Criminal Court of the City of New York Kings County, Part AP-9.

April 18, 1991.

Charles J. Hynes, Dist. Atty., Kings County by Asst. Dist. Attys. Jay M. Cohen, Peter A. Weinstein, Victor Barall, and Carol Moran, for the People.

Earl Ward, New York Civ. Liberties Union Foundation, New York City, for defendant.

MICHAEL A. GARY, Judge.

The defendant was arrested while picketing on a public street outside of the Family Red Apple grocery store. The history of the boycott of the store and the reasons for the injunctive relief granted the store owners by the New York Supreme Court is set forth in Jang v. Brown, 161 A.D.2d 49, 560 N.Y.S.2d 307. In Jang, supra, the New York City Police Department was directed to enforce the Supreme Court's order prohibiting all picketing within fifty feet from the Red Apple grocery store. In the case at bar, defendant is charged with Criminal Contempt in the second degree (PL § 215.50(3)) and Disorderly Conduct (PL § 240.20(6)). The defendant now moves, pursuant to CPL § 170.30(1)(a) and CPL § 170.35(1)(c), to dismiss only the charge of Criminal Contempt in the second degree on the ground that PL § 215.50(3) violates the First Amendment's free speech guarantees and the Equal Protection Clause of the Fourteenth Amendment.

CPL § 170.30(1)(a) provides for the dismissal of a count of an accusatory instrument if "it is defective, within the meaning of section 170.35." CPL § 170.35(1)(c) provides that an accusatory instrument is defective when "the statute defining the offense charged is unconstitutional or otherwise invalid."

The accusatory instrument here alleges, in pertinent part, that the deponent police officer observed:

The defendant stand and protest with a number of other individuals less than fifty feet from the entrance of [the Red Apple grocery store], a public store, thereby violating a valid court order index # 11133/90 signed by the Honorable Gerald S. Held on May 10, 1990, which restrains all individuals from congregating, protesting, demonstrating or otherwise gathering or distributing pamphlets at any point closer than 50 feet from the entrance of the above location.

Deponent further states that the above mentioned Court order was served on the defendant and its substance read to defendant, and that defendant was then ordered to disperse and to move at least fifty feet away from the above premises upon which police order [SIC] the defendant did remain within fifty feet of the entrance to the above premises and did continue to shout and chant.

Defendant argues that his prosecution under Penal Law § 215.50(3) violates the First and Fourteenth Amendments of the U.S. Constitution and Article I, Section 11 of New York Constitution. ¹ Specifically, defendant claims that the Penal Law's contempt statute, as applied to communicative activity, draws an impermissible content-based distinction between the speech of persons involved in labor disputes and the speech of those who are not, in violation of the First Amendment. Additionally, under defendant's reading of the contempt statute, he may be prosecuted whereas labor protesters, similarly in violation of a court order, are exempt from prosecution, in violation of the Fourteenth Amendment's Equal Protection Clause.

In response, the District Attorney ² argues that defendant's claims should be rejected because New York statutory law, taken as a whole, neither draws an impermissible content-based distinction nor does it treat labor demonstrators differently from persons engaged in speech on other topics. Alternatively, if defendant is correct, the People urge that the appropriate remedy would be to include contemptuous labor activity within the ambit of PL § 215.50(3). See, People v. Liberta, 64 N.Y.2d 152, 170-172, 485 N.Y.S.2d 207, 474 N.E.2d 567 (1984).

Discussion

Penal Law § 215.50(3) provides:

A person is guilty of criminal contempt in the second degree when he engages in ... the following conduct ...

Intentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty-three-a of the judiciary law.... (emphasis added)

As the defendant argues, and the People concede, the statute exempts from prosecution some labor demonstrators whose conduct may be in violation of a court order. Superficially at least, the argument seems to have merit since peaceful picketing is constitutionally protected activity under the First Amendment. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). In fact, the Supreme Court has consistently voided ordinances that provide preferential status to labor picketing over other forms of peaceful picketing. This prohibition against subject-matter discrimination is well established in our jurisprudence. Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), (ordinance which barred residential picketing but not labor picketing found unconstitutional); Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), (ordinance which barred all forms of picketing within 150 feet of public schools except for labor picketing found unconstitutional).

Defendant contends that even though Penal Law § 215.50(3) does not directly seek to suppress certain speech as in Mosley and Carey, supra, it is still violative of the First Amendment because it serves as the basis for the prosecution of those who engage in non-labor picketing but not for those engaged in labor picketing. Therefore, defendant argues, Penal Law § 215.50(3) is constitutionally infirm since it provides preferential treatment to one form of expressive activity over another.

An analysis of defendant's claim must begin with the May 10th order itself, since it was the disobedience of that order which is the basis of the contempt charge here.

In an attempt to balance the constitutional rights of the protesters to congregate, rally, and communicate their message with the store owners' right to engage in commerce and earn a living, the Supreme Court ordered that all demonstrators could continue their protest but only from a distance of not less than fifty feet from the entrance of the two targeted grocery stores. See, Jang v. Brown, supra.

The United States Supreme Court has unequivocally rejected the proposition that all picketing must always be allowed. In Mosley, supra, 408 U.S. at 98, 92 S.Ct. at 2291, the Court declared:

We have continually recognized that reasonable "time, place and manner" regulations of picketing may be necessary to further significant governmental interests.

The People correctly point out that the May 10th order is content neutral and narrowly tailored to meet a significant government interest. Moreover, the order does not abridge the defendant's First Amendment rights since it leaves open ample alternative avenues of communication permitting him to demonstrate everywhere except within a narrowly circumscribed area.

In Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), the U.S. Supreme Court found that a penal statute violates the Equal Protection Clause of the Fourteenth Amendment when it burdens a particular defendant but not others similarly situated. See also, People v. Liberta, supra, (marital exemption for rape and sodomy, and gender-based exemption of females from criminal liability for forcible rape of males are both violative of Equal Protection). Thus, when a law discriminates among speech-related activities in a public forum, "the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized." Carey, supra, 447 U.S. at 461-462, 100 S.Ct. at 2291, (citations omitted).

In the instant matter, defendant contends that PL § 215.50(3) runs afoul of the Equal Protection Clause in that there exists no substantial state interest to justify the preferential treatment for labor picketing. Contrary to the defendant's claim, the People argue that because labor picketing is punishable under the Judiciary Law, the constitutional requirement that all persons similarly situated be treated alike is satisfied. In response to that argument, defendant contends, a contempt proceeding brought pursuant to the Judiciary Law will result in significantly disparate treatment for the contemnor than one brought pursuant to the Penal Law.

Resolution of these issues must begin with an examination of New York statutory law.

It is a fundamental canon of statutory construction that statutes on the same subject matter (in pari materia ) are to be construed with reference to one another to ascertain their meaning and validity. See, e.g., Strobl v. New York Mercantile Exchange, 768 F.2d 22, 30 (2d Cir.1985); Lower Manhattan Loft Tenants v. New York City Loft Board, 66 N.Y.2d 298, 304, 496 N.Y.S.2d 979, 487 N.E.2d 889 (1985); see also, McKinney's Statutes § 221, at 376-377 (1971). This canon is particularly appropriate in the context of a challenge to a statute's constitutionality since there is a strong presumption that legislative enactments are constitutional (see, Cook v. City of Binghamton, 48 N.Y.2d 323, 330, 422 N.Y.S.2d 919, 398 N.E.2d 525 [1979]; Schultz Management v. Bd. of Standards and Appeals, 103 A.D.2d 687, 689, 477 N.Y.S.2d 351 [1st Dep't 1984], and because statutes are to be construed in such a manner as to uphold their constitutionality, if possible. Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 1170, 99 L.Ed.2d 333 (1988); Eaton v. New York City Concilation and Appeals Bd., 56 N.Y.2d 340, 346, 452 N.Y.S.2d 358, 437 N.E.2d 1115 (1982); Schultz, supra, 103 A.D.2d at 689, 477 N.Y.S.2d 351; see also, McKinney's Statutes § 150, at 314-323 (1971). Therefore,...