People v. Prisinzano

• Decision Date: 24 July 1996
• Citation: 170 Misc.2d 525,648 N.Y.S.2d 267
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Gennaro PRISINZANO, Defendant.
• Court: New York City Court

Page 267

648 N.Y.S.2d 267

170 Misc.2d 525

The PEOPLE of the State of New York, Plaintiff,

v. Gennaro PRISINZANO, Defendant.

Criminal Court of the City of New York,

New York County.

July 24, 1996.

Gerald J. McMahon, New York City, for defendant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Ann M. Olson, of counsel), for plaintiff.

JOHN CATALDO, Judge.

The defendant is charged with 66 RCNY § 1-35(i), intimidation or disruption of Fulton Fish Market business ¹ and Penal Law § 240.26(1), harassment in the second degree. He moves to dismiss the accusatory instrument upon the grounds that: (a) the offenses charged are unconstitutional as applied to his words, in violation of his free speech rights under both the United States and New York Constitutions; and (b) that the defendant is a victim of selective and discriminatory prosecution. CPL 170.30(1)(f). Defendant further moves, pursuant to CPL 240.70, to preclude the People from introducing evidence at trial for failure to timely answer defendant's discovery demand.

A. Freedom of Speech

The accusatory instrument alleges that the defendant, on three separate dates in front of 119 South Street in the County and State of New York, interfered with and disrupted the business of the Fulton Fish Market (hereinafter "the Market") by threatening three replacement employees by stating to each, respectively, "[W]hen the cops leave, the blood is going to run off of your bald fucking head"; "Once the police leave, I'm going to get you"; and "[O]nce the police leave you'll get yours."

The defendant asserts that the application of the statutes herein to his words violates his freedom of speech under the First Amendment of the U.S. Constitution and under art. I, § 8 of the New York Constitution. Consequently, the court's analysis is limited to the issue of whether the defendant's specific words may be penalized.

It is defendant's position that his speech, aimed at the three different complainants, did not constitute "fighting words", did not create a clear and present danger of violence, and did not comprise any other form of proscribable speech. According to the defendant, his words were at most crude outbursts or insulting language which, in and of themselves, cannot be banned. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971); People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 (1989).

Under defendant's version of the events, these words were spoken during a union protest in the course of a labor dispute. The complainants were all newly hired unloaders working at the Market after contracts with the protesters' unloading companies had been terminated by the City of New York. Defendant admits to engaging in verbal protests, and to being one of the most vocal protesters during the demonstrations. While he concedes his alleged words could be considered offensive and inviting of dispute, he believes they did not rise to a level likely to cause a physical fight. Furthermore, he denies he was ever in face-to-face confrontations with the complainants as is required under the "fighting words" doctrine. According to the defendant, numerous police officers and police barricades separated the defendant from the complainants.

In addition, defendant states the words he is alleged to have spoken at most alluded to future violent action, conditioned upon the police first leaving the area, and thus their advocacy was not directed to inciting other demonstrators to imminent lawless action nor was it likely to do so. Therefore, defendant states his words may not be punished under the theory that they created a "clear and present danger" of imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).

The People, in opposition, assert that defendant's words threatened physical injury to the addressees during face-to-face confrontations between the defendant and each complainant, thereby meeting the required elements of the "fighting words" doctrine. Further, the People maintain that defendant's arguments that these threats were not "fighting words", and were not made in face-to-face encounters, but were instead mere crude outbursts made while the defendant and the complainants were separated by police barricades, is a factual dispute which is for resolution by the factfinder at trial, and not by way of a constitutional claim which may be resolved by pretrial motion. The People assert that the defendant's words are sufficient for pleading purposes to support the charges in the accusatory instrument.

Despite the broad language of the First Amendment and the even more expansive language of the New York Constitution, ² freedom of speech has never been interpreted "... to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses." Cohen v. California, supra, 403 U.S., at 19, 91 S.Ct., at 1784; People v. Shack, 86 N.Y.2d 529, 634 N.Y.S.2d 660, 658 N.E.2d 706 (1995). Thus, notwithstanding the language of the constitutional guarantees to freedom of speech, it has long been recognized that the state may penalize a speaker on the basis of the spoken word (e.g., statutes which penalize perjury, conspiracy, intimidation of witnesses, extortion, coercion, criminal solicitation, falsely reporting an incident).

Three separate doctrines which permit the penalizing of speech are brought into play by this defendant's words. The defendant has raised two of these: "fighting words" and words which advocate imminent lawless action. A third category of proscribable speech which defendant has failed to address, but which is central to this prosecution, are those words which constitute "true threats." Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). Each of these doctrines will therefore be analyzed in relation to the defendant's words as set forth in the accusatory instrument.

1. Fighting Words

In Chaplinsky v. New Hampshire 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), the Supreme Court enumerated certain categories of speech, considered to be of such slight social value as a step toward truth and the exposition of ideas, that society's interest in maintaining order and morality outweighed any benefit that might be derived from allowing those forms of speech to be exercised. Among the categories of proscribable speech listed in Chaplinsky were "... the lewd and the obscene, the profane, the libelous, and the insulting or 'fighting words'--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. at 572. By this language, the Court created what has since been known as the "fighting words" doctrine.

In order to constitute "fighting words", the following elements must be established: (1) the speaker must address his words directly to a specific individual; (2) the encounter must be face-to-face; (3) the words must be likely to provoke the average addressee to violence under the circumstances; and (4) the threat of such violent response must be imminent. Id., at 573, 62 S.Ct., at 770.

The element of the "average addressee" was designed to safeguard against the suppression of speech which might only provoke a particularly violent or sensitive listener. A test which turned upon the response of the actual addressee would run the risk of impinging upon the free speech rights of the speaker who could then be silenced based upon the particular sensitivities of each individual addressee. Such a test would have an obvious chilling effect on speech. Therefore, the Supreme Court has steadfastly required that the words punishable under the doctrine are only those that "... men of common intelligence would understand would be words likely to cause an average addressee to fight." Gooding v. Wilson, 405 U.S. 518, 523, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (1972); Chaplinsky v. New Hampshire, supra, 315 U.S., at 573, 62 S.Ct., at 770. As the Court noted in Cohen v. California, supra, 403 U.S., at 20, 91 S.Ct., at 1785, even insulting or offensive words may have expressive value and are not "fighting words" unless uttered as direct personal insults likely to provoke violent reaction in the ordinary citizen. Hence, a state may not punish merely offensive or abusive speech without a showing that the average person under the circumstances, if the target of such words, would be prone to an immediate violent response. See, People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 (1989).

The continuing viability of the "fighting words" doctrine was recently reaffirmed by the Supreme Court in R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). In R.A.V., the Court addressed the question of whether "fighting words" are in and of themselves without First Amendment protection or whether only the "nonspeech" element attached to the words is outside the First Amendment.

R.A.V. v. St. Paul supra, 505 U.S., at 380, involved a challenge to a Minnesota statute which sought to penalize bias-motivated hate crimes. The defendant was charged with violating the statute by burning a cross in the yard of an African-American family. The ordinance read:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

The ordinance, as interpreted by the Minnesota Supreme Court, was limited to "fighting words", "conduct which itself inflicts injury or tends to incite immediate violence." (Id., at 380, 112 S.Ct., at 2541).

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