People v. Munafo

• Decision Date: 08 May 1980
• Citation: 406 N.E.2d 780,428 N.Y.S.2d 924,50 N.Y.2d 326
• Parties: , 406 N.E.2d 780 The PEOPLE of the State of New York, Respondent, v. James MUNAFO, Sr., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 924

428 N.Y.S.2d 924

50 N.Y.2d 326, 406 N.E.2d 780

The PEOPLE of the State of New York, Respondent, v. James MUNAFO, Sr., Appellant.

Court of Appeals of New York.

May 8, 1980.

Peter B. Lekki, Canton, for appellant.

William H. Power, Jr., Dist. Atty. (Richard A. Dudley, Jr., Asst. Dist. Atty., of counsel), for respondent.

Thomas R. Frey, Vito J. Cassan, Rochester, and Gerard V. Loughran, New York City, for Power Authority of the State of New York, amicus curiae.

OPINION OF THE COURT

FUCHSBERG, Judge.

A Justice of the Town Court of the Town of Russell found the defendant James Munafo Sr., guilty of the charges set out in two informations, one sounding in trespass (Penal Law, § 140.05) and the other in disorderly conduct (Penal Law, § 240.20). The County Court of St. Lawrence County has since affirmed. The narrow issue on which the present appeal turns is whether the evidence was sufficient to establish the offense pleaded in each accusatory instrument. We are convinced it was not.

This case may be said to be a by-product of the distraught state into which the defendant was precipitated when the State Power Authority appropriated a right of way which cut a wide swath across a section of his farm. Taking the facts most favorably to the People, as the County Court affirmance requires us to do, it is fair to say that the defendant, further disturbed when the authority arrived to erect a large transmission line that would have added dramatically to the unwanted division of his land, pursued two successive acts of protest. As a construction crew approached the right of way along its sole means of direct access, a private road located on defendant's property at a point about a quarter of a mile from the nearest public road, the defendant fired a rifle across its path at a target he had set up on the other side of the area on which the towers were to be raised; the line of sight was south to north and any persons in the general vicinity at the time were located some distance either to the east or west of this trajectory. There is no indication that anyone was endangered by the shot, but defendant, understandably, was divested of the gun. He then positioned himself in the path of an authority backhoe, and, when he refused to move after a police officer told him he would be arrested if he failed to do so, that promise was kept. According to the deposition filed in support of both informations, these events occurred in the presence of "approximately 8 to 10 persons not associated with the power authority".

Without condoning defendant's conduct, and without reflecting on what other measures, civil or criminal, may have been legally supportable in these circumstances to prevent unwarranted interference with the authority's use of its right of way, but with due regard for the principle that penal responsibility cannot be extended beyond the scope of a charge lodged and proved, we are convinced that the convictions cannot stand. Our reasons follow.

First, as to the trespass, this is a matter that is no stranger to the history of either civil or criminal law. In the setting of a civil action, broadly speaking, trespass includes an impingement on the right to possession (e.g., Oatka Cemetery Ass'n v. Cazeau, 242 App.Div. 415, 275 N.Y.S. 355). Under prevailing criminal statutes, however, it has been more narrowly reformulated to cover only the conduct of a person who "knowingly enters or remains unlawfully" on "any real property", i.e., unless he is "licensed or privileged to do so" (Penal Law, § 140.00, subds. 1, 5; § 140.05).

Surely the defendant was at least so "privileged". While as an easement, the authority's right of way was in the nature of an interest in real property (Restatement, Property, § 450; 3 Powell, Real Property, par. 405), Munafo retained the ownership of the affected realty along with the underlying possessory interest (3 Powell, Real Property, par. 404; cf. Beardslee v. New Berlin Light & Power Co., 207 N.Y. 34, 40-41, 100 N.E. 434). Informative too is the long-recognized rule that the grantee of an easement may not maintain an action in trespass against the grantor, the person with the superior right of possession (see Farrer v. Piecuch, 278 App.Div. 1011, 106 N.Y.S.2d 157, subsequent opn. 203 Misc. 572, 116 N.Y.S.2d 401; Socony-Vacuum Oil Co. v. Bailey, 202 Misc. 364, 365-366, 109 N.Y.S.2d 799; Prosser, Torts (4th ed.), § 13, pp. 68-69, n. 58).

It would be incongruous to conclude, absent some positive indication of such a design that the Legislature intended to brush aside these established real property concepts, not only to interdict the grantor of an easement from treading upon his property, but to punish that exercise of his retained right as criminal. Yet there is not the slightest hint that that was its purpose (see, generally, Hechtman, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 140.00 pp. 14-17). If anything, subdivision 5 of section 140.00 of the Penal Law, by expressly placing in the hands of "the owner" the power to convert certain lawful entries on real property into unlawful ones, suggests quite the contrary. ^* We therefore hold that the defendant's act of entering and remaining on the right of way did not violate the section in question.

Focusing now on the accusation of disorderly conduct, we enter an area of our criminal law which, unlike trespass, is not bottomed on deep-rooted principles. Disorderly conduct is a statutory creation. Intended to include in the main various forms of misconduct which at common law would often be prosecuted as public nuisances, and modeled after the English statute which is the progenitor for most American versions of disorderly conduct legislation (5 Geo IV, ch 83), the offense first appeared in this State in local ordinances in 1883 and on a State-wide basis in 1923 (former Penal Law, § 722; see People ex rel. Mulhern v. Kaufman, 165 Misc. 670, 672-673, l N.Y.S.2d 362).

Because of this catchall character, a melange of offenses, some expressly stated in the statute and others not, came to be prosecuted under its banner and, because generally classified as below a misdemeanor, were often...