People v. Penn

CourtNew York Supreme Court — Appellate Term
Writing for the CourtBefore HECHT; PER CURIAM; CAPOZZOLI; HECHT; HOFSTADTER; LOUIS J. CAPOZZOLI; SAMUEL H. HOFSTADTER
Citation265 N.Y.S.2d 155,48 Misc.2d 634
Decision Date15 October 1964
PartiesThe PEOPLE of the State of New York, Respondent, v. Sara E. PENN, Helena L. Levine, Barbara Pliskow, Edward W. Pitt, Benita T. Cannon, Claudio Ramos, Thomas McKenna, Meryl Chatkin, Isidore T. Bloom, David Rivera, and Saul Gottlieb, Defendants-Appellants.

Page 155

265 N.Y.S.2d 155
48 Misc.2d 634
The PEOPLE of the State of New York, Respondent,
v.
Sara E. PENN, Helena L. Levine, Barbara Pliskow, Edward W.
Pitt, Benita T. Cannon, Claudio Ramos, Thomas McKenna, Meryl
Chatkin, Isidore T. Bloom, David Rivera, and Saul Gottlieb,
Defendants-Appellants.
Supreme Court, Appellate Term, First Department.
Oct. 15, 1964.

Howard M. Squadron, Alan S. Rosenberg and Lawrence H. Rogovin, New York City, for appellants.

Frank S. Hogan, Dist. Atty., H. Richard Uviller, Alan Frederick Leibowitz, New York City, of counsel, for respondent.

Before HECHT, J. P., and CAPOZZOLI and HOFSTADTER, JJ.

PER CURIAM.

Judgments of conviction against all defendants affirmed.

CAPOZZOLI, J., concurs in accordance with memorandum filed herewith.

HECHT, J., concurs.

HOFSTADTER, J., dissents in dissenting opinion herewith.

Page 156

LOUIS J. CAPOZZOLI, Justice (concurring).

The instant appeal arises out of incidents of alleged disorder connected with a racial protest by these defendants against illegal discrimination in the building trades unions. These incidents occurred on Rutgers Street and on an access road leading to a wire fence containing the entrance to a building site where public housing was in the course of construction.

On the basis of the evidence adduced at the trial, the Court below found that these defendants darted into the path of trucks which were delivering construction material; some of them sat in front of and under the wheels of the trucks and others sat in front of the gate leading to the housing site itself. These actions interfered with the movements of the trucks so that they came to a complete stop and they were prevented from proceeding to their destination. The evidence also established that the defendants refused to obey the instructions of the police to move out of the way so as to allow the trucks to proceed. On the basis of the total evidence adduced the Court found all the defendants guilty of a violation of Sec. 722, Subds. 2 and 3 of the Penal Law of the State of New York (disorderly conduct).

It is the contention of the defendants on this appeal that the evidence in the court below was insufficient to support the convictions; that they are protected by the First and 14th Amendments to the Constitution of the United States and that Sec. 722 of the Penal Law has no application to their actions.

There was no real dispute below as to the evidence. The defendants admitted that they deliberately placed themselves in sitting positions before the entrance gate to the building site and also on the street, directly in front of the trucks and the wheels thereof. There is no dispute that their 'sit-down' conduct stopped and prevented the trucks from entering the site.

Such conduct was not normally to be anticipated. It constituted a disturbance of the public order by acts likely to produce violence and cause consternation and alarm. There is enough shown from which it can reasonably be seen that, had an adequate number of police not been present, the conduct of the defendants might have been retaliated by the truck drivers or others with serious consequences to the peace of the community.

The further conduct of the defendants in refusing to remove themselves from their obstructionist sitting positions, after repeated requests and entreaties by the police officers, and after being repeatedly warned by the police that the conduct of the defendants violated the law and that they could be arrested therefor, were all calculated to, and did in fact, violate Sec. [48 Misc.2d 636] 722. There is no question but that the defendants, by their conduct and acts, annoyed, disturbed, interfered with and obstructed others (the truck drivers) by acts likely to produce violence and cause consternation

Page 157

and alarm, all of which tended to a breach of the peace. (Penal Law, Sec. 722, subd. 2.) They also violated subd. 3 of the statute by congregating on a public street and refusing to move on when ordered to do so by the police.

A review of the record below discloses amply evidence to justify the convictions of the defendants.

The defendants strongly contend that their actions were legal and not subject to prosecution, because they desired to dramatize the impairment of civil rights by labor unions in the building trades and to call attention to acts of discrimination by them against negroes. They further argue that they were engaged in a peaceful protest against these acts of discrimination and were engaged in an effort to have the laws prohibiting discrimination enforced. That in doing so, they maintain, they are protected by the United States Constitution as a proper exercise of free speech, proper exercise of the rights of public assembly and to petition for redress of grievances under the First and 14th Amendments. In support of their position they cite the cases of Edwards v. State of South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Shuttlesworth v. Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963); Peterson v. Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963); Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963) and Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963).

An examination of those cases discloses that the reliance by the defendants upon them is entirely misplaced. The facts in the case at bar are so obviously different from the facts in all of the last cited cases as to render the sound holdings of those cases clearly inapplicable to the behavior of these defendants.

This Court is not faced with an orderly, quiet lunch-counter sit-in which violates an unconstitutional city ordinance requiring the separation of the races in restaurants (Peterson v. Greenville, supra); or which violates an 'official command which has at least as much coercive effect as an ordinance' and which directs the continuance of segregated services in restaurants (Lombard v. State of Louisiana, supra, 373 U.S. p. 273, 83 S.Ct. 1122); nor is the Court dealing with a conviction for aiding and abetting persons to engage in an orderly sit-down demonstration (Shuttlesworth v. Birmingham, supra); neither is the Court dealing with a contempt conviction which rests upon a negro's refusal to comply with the segregated searing requirements observed in a courtroom (Johnson v. State of Virginia, supra); wherein petitioner was held in [48 Misc.2d 637] contempt for being 'peaceably seated in the section reserved for whites' (373 U.S. p. 62, 83 S.Ct. 1053, p. 1054). Nor do we have the situation which was presented in Edwards v. State of South Carolina, supra, where there was an assembly of negroes to peaceably express their grievances and where

Page 158

the court specifically found that 'there was no violence or threat of violence' and further found '[t]here was no obstruction of pedestrian or vehicular traffic * * *. No vehicle was prevented from entering or leaving the * * * area' of the demonstration (372 U.S. pp. 231, 232, 83 S.Ct. 680, pp. 681, 682).

As against these last cited cases let us consider the case of People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272. In that case defendants placed a clothes-line filled with old clothes and rags in the front yard of their home, in violation of an ordinance of the City of Rye prohibiting the erection and maintenance of clothes-lines or other devices for hanging clothes in a front or side yard abutting a street. When prosecuted therefor the defendants urged, amongst other things, that the ordinance was unconstitutional and that it interfered with their right of free speech as guaranteed by the First Amendment. In passing upon this contention of the defendants the Court said:

'* * * This form of nonverbal expression is, we shall assume, a form of speech within the meaning of the First Amendment. [Citing cases.] However, it is perfectly clear that, since these rights are neither absolute nor unlimited [citing cases], they are subject to such reasonable regulation as is provided by the ordinance before us. Although the city may not interfere with nonviolent speech, it may proscribe conduct which incites to violence or works an injury on property, and the circumstance that such prohibition has an impact on speech or expression, otherwise permissible, does not necessarily invalidate the legislation.'

In the case of Trans-Lux Distributing Corp. v. Board of Regents, etc., 14 N.Y.2d 88, at p. 91, 248 N.Y.S.2d 857, 859, 198 N.E.2d 242, 244, the Court said:

'* * * while conduct may be speech, it still remains conduct and does not cease to present its unique problems of social control. It is now the law that even peaceful picketing may be forbidden where it violates State labor laws that are not themselves designed as restrictions on freedom of speech [citing case]. Conduct that is proscribed for valid public purposes is not immune merely because engaged in with a view to expression (Giboney v. Empire Ice & Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834).'

The holding in the last two cited cases is directly contrary to the position taken by the defendants.

In the case of Gaynor et al. v. Rockefeller et al., 21 App.Div.2d 92, 248 N.Y.S.2d 792, the unanimous opinion of the Court indicated that racial policies of exclusion by some of the building industry unions 'are of so long [48 Misc.2d 638] duration and so widely known that the courts might, if they so

Page 159

elected, take judicial notice of the fact * * *' (p. 100, 248 N.Y.S.2d p. 802). The Court then indicated that the law provides punishment for business or labor organizations which discriminate unlawfully, citing Penal Law, Secs. 514 and 701; Civil Rights Law, Secs. 41, 43; Labor Law, Sec. 220-e, Subd. (c).

It is, therefore, apparent that these defendants had legal avenues open to them to bring about the objectives they seek.

While it is true that the Supreme...

To continue reading

Request your trial
7 practice notes
  • People v. Turner
    • United States
    • New York Supreme Court — Appellate Term
    • November 12, 1965
    ...of the defendants in resisting an unlawful arrest (cf. People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238). In People v. Penn et al., 1964, 48 Misc.2d 634, 265 N.Y.S.2d 155, affirmed 16 N.Y.2d 581, 260 N.Y.S.2d 847, 208 N.E.2d 789, motion for reargument denied 16 N.Y.2d 883, 264 N.Y.S.2d 1031, ......
  • People v. Carty
    • United States
    • New York Supreme Court — Appellate Term
    • December 14, 2016
    ...85 L.Ed. 1049 [1941] ; Papineau ( Jones) v. New York (Parmley), 465 F.3d 46, 56–57 [2d Cir.2006] ). As this court held in People v. Penn, 48 Misc.2d 634, 265 N.Y.S.2d 155 (App.Term, 1st Dept.1964), affd. 16 N.Y.2d 581, 260 N.Y.S.2d 847, 208 N.E.2d 789 (1964), protests and demonstrations are......
  • People v. Pettigrew
    • United States
    • New York District Court
    • February 2, 1972
    ...Peo. v. Nixon, 248 N.Y. 182, 161 N.E. 463 (1928) Peo. v. Galamison, 43 Misc.2d 72, 250 N.Y.S.2d 325 (App.T. 2nd Dep't 1964) Peo. v. Penn. 48 Misc.2d 634, 265 N.Y.S.2d 155 (App.T. 1st Dep't The last three cases can be dealt with summarily. The Nixon court refused to uphold the conviction eve......
  • People v. Carty, 13-281
    • United States
    • New York Supreme Court — Appellate Term
    • December 14, 2016
    ...312 US 569, 574 [1941]; Papineau (Jones) v New York (Parmley), 465 F3d 46, 56-57 [2d Cir. 2006]). As this court held in People v Penn (48 Misc 2d 634 [App Term, 1st Dept [1964], affd 16 NY2d 581 [1964]), protests and demonstrations are "subject to reasonable regulation and control in the in......
  • Request a trial to view additional results
7 cases
  • People v. Turner
    • United States
    • New York Supreme Court — Appellate Term
    • November 12, 1965
    ...of the defendants in resisting an unlawful arrest (cf. People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238). In People v. Penn et al., 1964, 48 Misc.2d 634, 265 N.Y.S.2d 155, affirmed 16 N.Y.2d 581, 260 N.Y.S.2d 847, 208 N.E.2d 789, motion for reargument denied 16 N.Y.2d 883, 264 N.Y.S.2d 1031, ......
  • People v. Carty
    • United States
    • New York Supreme Court — Appellate Term
    • December 14, 2016
    ...85 L.Ed. 1049 [1941] ; Papineau ( Jones) v. New York (Parmley), 465 F.3d 46, 56–57 [2d Cir.2006] ). As this court held in People v. Penn, 48 Misc.2d 634, 265 N.Y.S.2d 155 (App.Term, 1st Dept.1964), affd. 16 N.Y.2d 581, 260 N.Y.S.2d 847, 208 N.E.2d 789 (1964), protests and demonstrations are......
  • People v. Pettigrew
    • United States
    • New York District Court
    • February 2, 1972
    ...Peo. v. Nixon, 248 N.Y. 182, 161 N.E. 463 (1928) Peo. v. Galamison, 43 Misc.2d 72, 250 N.Y.S.2d 325 (App.T. 2nd Dep't 1964) Peo. v. Penn. 48 Misc.2d 634, 265 N.Y.S.2d 155 (App.T. 1st Dep't The last three cases can be dealt with summarily. The Nixon court refused to uphold the conviction eve......
  • People v. Carty, 13-281
    • United States
    • New York Supreme Court — Appellate Term
    • December 14, 2016
    ...312 US 569, 574 [1941]; Papineau (Jones) v New York (Parmley), 465 F3d 46, 56-57 [2d Cir. 2006]). As this court held in People v Penn (48 Misc 2d 634 [App Term, 1st Dept [1964], affd 16 NY2d 581 [1964]), protests and demonstrations are "subject to reasonable regulation and control in the in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT