People v. Morrisey

• Decision Date: 15 March 1994
• Docket Number: AP-9
• Citation: 614 N.Y.S.2d 686,161 Misc.2d 295
• Court: New York City Court
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Paul MORRISEY & Ruby McDaniel, Defendants

Page 686

614 N.Y.S.2d 686

161 Misc.2d 295

The PEOPLE of the State of New York, Plaintiff, v. Paul MORRISEY & Ruby McDaniel, Defendants.

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

March 15, 1994.

Robert M. Morgenthau, Dist. Atty. of New York County by David A. Stampley, New York City, for the People.

Robert J. Barsch, New York City, for the defendants.

BARBARA F. NEWMAN, Judge:

The defendants are charged with Disruption, or Disturbance of a Religious Service (P.L. § 240.21). Defendant Morrisey is also charged with Attempted Assault in the Third Degree (P.L. §§ 110.00, 120.00[1] and Harassment in the Second Degree (P.L. § 240.26[1]. On November 30, 1993, the court issued an abbreviated decision denying the defendants' motion to dismiss pursuant to C.P.L. Articles 170 and 210, granting the defendants' requests for discovery, granting the People's cross-motion for reciprocal discovery and referring the issue of the defendants' prior convictions or prior bad acts to the trial court. This decision will constitute the full decision concerning the defendants' motion to dismiss pursuant to Articles 170 and 210 of the Criminal Procedure Law.

Penal Law § 240.21 states:

Disruption, or disturbance of religious service

A person is guilty of aggravated disorderly conduct, who makes unreasonable noise or disturbance while at a lawfully assembled religious service or within one hundred feet thereof, with intent to cause annoyance or alarm or recklessly creating a risk thereof.

The accusatory instrument provides, in relevant part:

Deponent states that, at approximately 1715 hours, inside the above location, when a regularly scheduled service was to have begun, the defendants and other unapprehended individuals, scattered throughout the congregation, including in the altar area, loudly chanted, and in doing so, prevented the scheduled service from beginning. Deponent observed the two defendants, along with approximately eight other unapprehended individuals, performing these actions on the sanctuary platform around the altar and behind the cross, alternately walking and kneeling as they chanted. Deponent states that defendants' actions caused the service to be delayed approximately one-half hour.

Deponent states that, at approximately 1740 hours, as he and deacon Felipe Sin approached the altar, defendants blocked deponent and Mr. Sin from proceeding to the altar by standing at the altar, in the way. Defendants continued to chant, with defendant Morrisey leading and defendant McDaniel and other unapprehended individuals responding.

Deponent states that, as he stood to conduct the opening rite of the service, defendant Morrisey stood in front of deponent, the defendant facing the congregation and with his back to deponent.

Deponent states that, after the choir and congregation sang a hymn, he observed an unapprehended person seize the microphone in front of the choir.

Deponent states that, as deponent observed Cathy Brown read the first reading, deponent observed two unapprehended individuals stand approximately one foot from Ms. Brown, on either side of her, shouting at her.

Deponent states that, at the same time, defendant McDaniel approached informant and from approximately three feet away, shouted, in substance: "You shouldn't be here. You are not fit to be a priest. You should be ashamed of yourself. You're not fit or worthy to sell shoes."

Deponent then observed defendant Morrisey attempt to seize a microphone from the lectern.

Deponent states that, as he stood, prior to the reading of the Gospel, defendant Morrisey approached deponent and, from behind, pulled deponent with defendant Morrisey's arm around deponent's neck. Deponent further observed defendant Morrisey reach with defendant's other hand and seize the small, clip-on microphone which deponent held for the Gospel reader. Deponent states that, as the defendant pulled the microphone away, a wire on the microphone lodged in deponent's finger and then hooked into his hand, causing physical injury in the form of lacerations which required cleaning and tetanus shots at St. Luke's Roosevelt Hospital, and which caused deponent pain.

Deponent states that defendants' actions constituted unreasonable noise of a sort that prevented the worshippers at the scheduled service from conducting the service and which caused deponent annoyance and alarm.

The defendants have moved for the dismissal of the accusatory instrument on several grounds. The court will address each argument individually.

CONSTITUTIONALITY OF PENAL LAW § 240.21

The defendants argue that the charge of Disruption, or Disturbance of Religious Service is unconstitutional on the grounds that it violates the due process, free exercise of religion and the Establishment Clauses of the United States Constitution.

At the outset, the court notes that it is an elementary rule of judicial review of the constitutionality of any statute that:

[I]f there is any doubt as to the constitutionality of a statute the Legislature's expressed will should be upheld; and mere doubt does not afford a sufficient ground for a judicial declaration of invalidity. As otherwise expressed, if there is a reasonable doubt as to its validity an act must be upheld, and it will be stricken down only when unconstitutionality is shown beyond a reasonable doubt.

McKinney's Cons.Laws, Book 1, Statutes § 150, p. 311. Thus, the defendant has a heavy burden to meet in order to overcome this presumption of constitutionality. Matter of Quinton A., 49 N.Y.2d 328, 425 N.Y.S.2d 788, 402 N.E.2d 126 (1980); People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 253 N.E.2d 202 (1969).

In support of their argument, the defendants rely on the arguments advanced in People v. Steele, 70 Misc.2d 351, 333 N.Y.S.2d 959 (Crim.Ct.N.Y.Co.1972). In People v. Steele, the court dismissed the complaints against eight defendants who were charged with P.L. § 240.21 when they allegedly lay in the center aisle of St. Patrick's Cathedral during a Mass. The defendants, whose group consisted of seven nuns and one Catholic lay teacher, argued that their actions were allowed under Church doctrine, as stated in the Constitution on the Sacred Liturgy, which encourages worshippers "to take part by means of acclamation, responses, psalmody, antiphons and songs, as well as by actions, gestures and bodily attitudes." Id. at 354, 333 N.Y.S.2d 959. In reaching its decision the Steele court relied on Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969), and declined to engage in the process of interpreting and weighing church doctrine. Steele, 70 Misc.2d at 354-355, 333 N.Y.S.2d 959. Accordingly, the complaints were dismissed against all of the defendants on these alternate grounds.

The court in Steele declined to declare P.L. § 240.21 unconstitutional and the court did not reach any of the constitutional arguments presented by the defendants in that case. However, the defendants in the instant matter renew these constitutional arguments before this court.

The defendants contend that P.L. § 240.21 violates the Establishment Clause by designating this statute as a class A misdemeanor while the disruption of a non-religious assembly is designated in the Penal Law as a violation. See P.L. § 240.20. The People argue that the purpose of P.L. § 240.21 is not to establish any right; its purpose is to protect the rights of those individuals who choose to exercise their fundamental right of freedom of religion.

The court agrees with the People. As the People have correctly noted, the legislature may designate an offense a class A misdemeanor when the proscribed conduct interferes with a fundamental right. (See, e.g., P.L. § 240.30[3], Civil Rights Law §§ 40-c[2], 40-d).

In support of their argument, the People cite to Riley v. District of Columbia, 283 A.2d 819 (D.C.C.A.1971). The defendants in Riley also argued that a statute, similar to P.L. § 240.21, violated the Establishment Clause. The court in Riley upheld the constitutionality of D.C.Code § 22-1114, which states:

Disturbing religious congregation:

It shall not be lawful for any person or persons to molest or disturb any congregation engaged in any religious exercise or proceedings in any church or place of worship in the District of Columbia; and it shall be lawful for any of the authorities of said churches to arrest or cause to be arrested any person or persons so offending, and take him, her, or them to the nearest police station, to be there held for trial; and any person or persons violating the provisions of this section shall forfeit and pay a fine of not more than one hundred dollars for every such offense.

The court in Riley, supra, rejected the defendants' argument that the statute violated the Establishment Clause and conversely found that the statute expressed "a legitimate governmental interest in protecting freedom of worship as well as the maintenance of peace and good order." Id. at 825.

This court concurs with the People's argument and is persuaded by the rationale of the court's finding in Riley v. District of Columbia, 283 A.2d 819, 825 (D.C.C.A.1971).

The defendants further argue that as applied P.L. § 240.21 is an unconstitutional infringement of their First Amendment right to freedom of religion. The defendants argue that they were in the process of reciting the rosary at the time of their arrest. Therefore, the defendants argue, this court must find that the recitation of the rosary is prima facie an "unreasonable noise or disturbance" proscribed by P.L. § 240.21 in order to find that the statute is constitutional.

In response to this argument, the People contend that the statute does not impose criminal liability on an individual for his or her religious beliefs and that to do so would in fact be prohibited by the free exercise of religion clause. Rather, the People state that the statute "is directed at preventing acts...