People v. Rose

• Decision Date: 06 May 1975
• Citation: 368 N.Y.S.2d 387,82 Misc.2d 429
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Robert ROSE, Defendant.
• Court: New York County Court

Page 387

368 N.Y.S.2d 387

82 Misc.2d 429

The PEOPLE of the State of New York, Plaintiff, v. Robert ROSE, Defendant.

Rockland County Court.

May 6, 1975.

Kenneth Gribetz, Dist. Atty. by Thomas E. Urell, Sr. Asst. Dist. Atty., for plaintiff.

Frank P. Barone, Public Defender by Barnet S. Selman, for defendant.

DECISION AND ORDER

HARRY EDELSTEIN, Judge:

The novel question herein is whether a court may hold its sessions in a school house. Searches of the books indicate that the question was not answered heretofore in New York or in any other American jurisdiction.

The defendant is charged, pursuant to Penal Law § 120.00(1), with assault in the third degree. The arraignment was held in the same building as a religious school for girls, and the trial is to be held in a classroom in that school house. The defendant moves pursuant to Criminal Procedure Law § 170.25 to require the District Attorney to prosecute the charge by indictment.

Generally, the appropriate place for the sittings of a court and for trials is a court room in the court house of that court within the jurisdiction of that court. Each court is obligated to hold its sessions at the place designated in accordance with law, not at a place of convenience. People v. Pisano, 142 App.Div. 524, 529, 127 N.Y.S. 204, 208 (2nd Dep't, 1911). The sittings of a court must be held with regularity at a particular place or at particular places. Northrup v. People, 37 N.Y. 203, 206 (1867).

Uniform Justice Court Act § 106(1) provides that '(a) justice may hold court anywhere in the municipality * * *'. The Practice Commentary by Professor Siegel states that UJCA § 106(1) mandates that the sittings of a justice court of a village be held within the political limits of that village. 29A, part 2, McKinney's Cons.Laws of N.Y., pocket part, 79 at 80. Though a literal reading of the section suggests that a village justice may designate a sitting of the justice court 'anywhere' in the village, the Legislature in its wisdom could not have intended to empower a town justice, a village justice, or a city justice to designate a place of sitting of a justice court arbitrarily or capriciously, or contrary to any legal right or requirement.

The use of a school house as a court house is unlawful, because the right to a public trial is violated thereby. A public trial is a constitutional and a statutory right, preserved for civil and criminal actions and proceedings to all parties thereto and to the citizens of the State. U.S.Const. amend. VI, amend. VII, amend. XIV, § 1; N.Y.Const. art. 1, § 2, art. 1, § 6; In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); People v. Hinton, 31 N.Y.2d 71, 73, 334 N.Y.S.2d 885, 887, 286 N.E.2d 265, 266 (1972) (all concur); Civil Rights Law § 12; Judiciary Law § 4. At common law as well, '. . . every Court of justice is open to every (citizen).'. Scott v. Scott, (1913) A.C. 417, 440 (H.L.) (Earl of Halsbury). In every jurisdiction in which the heritage of the common law is the bulwark of liberty of a free people, the right to a public trial is preserved. See, for example, N.Y.Const. 1777, art. XXXV; L.1787, c. 1.; N.Y.Const. art. 1, § 2, art. 1, § 6, art. 1, § 14; People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769 (1954) (Fuld, J.); Davis v. United States, 247 F. 394 (8th Cir., 1917); Scott v. Scott, Supra; McPherson v. McPherson, (1936) 1 D.L.R. 321 (Jud.Comm.P.C.); Re Springman and Darragh, (1968) 1 D.L.R. (3d) 250 (Man.C.A.); Holt v. Willing, (1913) 9 Tas.L.R. 70 (Tas.Sup.Ct.) (Dobbie, A.J.). Trials in open court, which spectators may enter of right, has been the tradition and usage of the common law from time immemorial. In re Oliver, Supra, 333 U.S. at 266, n. 14, 68 S.Ct. 499. 'Open court' means 'a Court to which the public have a right to be admitted'. R. v. Hamilton, (1930) 30 S.R.N.S.W. 277 (N.S.W.Sup.Ct.) (Street, C.J.). Exclusive of certain exceptional circumstances, a judge or justice has no discretion whether a judicial proceeding is to be open to the public. People v. Jelke, Supra; Hearts of Oake Assce. Co., Ltd. v. A.--G., (1931) 2 Ch. 370, 397 (C.A.) (Romer, L.J.), rev'd on other gds., (1932) A.C. 392 (H.L.). As stated by Mr. Justice (now Chief Justice) Freedman, 'Publicity is the authentic hallmark of justice.'. Re Springman and Darragh, Supra, at 251.

A school building, even if a public building, is not public in the sense that any person may enter therein. People v. Johnson, 6 N.Y.2d 549, 552, 190 N.Y.S.2d 694, 696, 161 N.E.2d 9, 10 (1959). A school building is restricted to teaching (People v. Johnson, Supra, at 553, 190 N.Y.S.2d at 697, 161 N.E.2d at 11), and unauthorized presence in a school building is loitering (Pen.L. § 240.35(5); People v. Johnson, Supra). In the case at Bar, the school house is not owned by the village, but is private, and is for that reason as well not open to the general public. Any building to which access is limited, restricted, or prohibited may not be used for any legal proceeding. People v. Schoonmaker, 65 Misc.2d 393, 396, 317 N.Y.S.2d 696, 700 (Cty.Ct., Greene Cty., 1971); Dando v. Anastassiou, (1951) V.L.R. 235, (1951) A.L.R. 629 (Vic.Sup.Ct.). Moreover, selection as a court house or court room of a building or room dedicated to religion or permeated with religious symbols is inconsistent with the spirit and intent of the constitutional prohibitions of and fortifications against establishment of religion. U.S.Const. amend. I, amend. XIV, § 1; N.Y.Const. art. 1, § 3.

A purported judicial proceeding held in violation of the right to a public trial is a nullity, and must be set aside. In re Oliver, Supra; People v. Jelke, Supra; United States v. Brown, 7 USCMA 251, 22 CMR 41 (1956) (Latimer, J.) (no dissent); Davis v. United States, Supra; People v. Hartman, 103 Cal. 242, 37 P. 153 (1894); Scott v. Scott, Supra; Re Springman and Darragh, Supra; Holt v. Willing, Supra; R. v. Hamilton, Supra. A purported judicial proceeding held in a place prohibited or not authorized is a nullity, and must be set aside. Northrup v. People, Supra; People v. Pisano, Supra; People v. Schoonmaker, Supra; Dando v. Anastassiou, Supra.

On the ground of the denial of a public trial to the defendant; alternatively,

on the ground of the denial of a public trial to the citizens of the State; alternatively,

on the ground of the sitting of the Justice Court at a prohibited place; alternatively,

on the ground of the sitting of the Justice Court at an unauthorized place,

the purported arraignment is set aside. The defendant's motion is...