People v. Sprowal

• Decision Date: 13 January 1966
• Citation: 49 Misc.2d 806,268 N.Y.S.2d 444
• Parties: The PEOPLE of the State of New York, Respondent, v. William SPROWAL and Steven Gordon, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Term

Page 444

268 N.Y.S.2d 444

49 Misc.2d 806

The PEOPLE of the State of New York, Respondent, v. William SPROWAL and Steven Gordon, Defendants-Appellants.

Supreme Court, Appellate Term, First Department.

Jan. 13, 1966.

Frank S. Hogan, Dist. Atty., New York County (Frederick P. Hafetz, Asst. Dist. Atty., of counsel), for respondent.

Lloyd McAulay, New York City, for defendants--appellants.

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

TILZER, Justice Presiding:

The defendants appeal from a judgment of the Criminal Court of the City of New York, County of New York, convicting them, after trial of violating section 722--b of the Penal Law. Defendant Gordon was sentenced to serve five days' imprisonment or to pay $50.00 and defendant Sprowal was sentenced to serve 60 days in the Workhouse.

Penal Law, section 722--b, entitled 'loitering in school buildings,' provides:

'Any person not the parent or legal guardian of a pupil in regular attendance at said school who loiters in or about any school building or grounds without written permission from the principal, custodian or other person in charge thereof, or in violation of posted rules or regulations governing the use thereof, shall be guilty of disorderly conduct.'

Patrolman Gruntz testified that at 1:40 in the afternoon of May 29, 1964, while standing in front of the main entrance of the Charles Evans Hughes High School, he observed a group of some eight persons walking toward the school. The school is located on the north side of West 18th Street, in the middle of the block between Eighth and Ninth Avenues, Manhattan. There is no yard or fence between the school and the sidewalk, and the sidewalk is ten to twelve feet wide. Officer Gruntz inquired of defendant-appellant Sprowal what the group intended to do and Sprowal replied that they planned to distribute literature in front of the school. The officer then told Sprowal that it was not permissible to hand out such literature in front of the school; that they could distribute the leaflets on the corner or on another block, but that they could not interfere with the students coming in or out of the school. At the time between 250 and 500 students were leaving the school. At the front entrance to the school building was a sign reading, 'No loitering. Persons found loitering in front of the building are subject to the charge of Disorderly Conduct.'

For some 30 minutes the officer pleaded with the defendants to discontinue handing out the literature in front of the entrance to the school, not to block up the place and get out of the block as they were interfering with the dismissal of the students. Sprowal refused to move and sat down on the street. Four others, of the original group of eight, also refused to move away from the school and continued handing out literature, within five feet from the main entrance of the school, to some 200 students who were milling around the group. ^* Gruntz then placed Sprowal and three of the others under arrest. The defendant-appellant Gordon in the meantime had moved 200--300 feet east of the school, where he continued handing out literature. Gruntz had a fellow officer summon Gordon to his side, and Gordon having refused to leave the block, was also placed under arrest. At this point, due to the pressure of the students emerging from the school, the officer and the defendants crossed to the south side of the street.

The trial court, in an oral opinion, found three of the defendants, who according to defense testimony never distributed literature on the school side of the street, not guilty of violating section 722--b. Defendants Sprowal and Gordon were found guilty of violating section 722--b. The court did not indicate whether it had accepted the People's or the defense's testimony concerning the position of defendant Gordon on West 18th Street.

It is against this background that we consider the various arguments of the appellants. A legitimate interpretation of section 722--b, in our view, is that the activities of the appellants (passing for the moment the question of whether the acts or conduct of each of the appellants were identical in kind) were not irrelevant to the purpose for which the statute was passed. While the Legislature was concerned primarily with preventing vandalism and assaults on pupils and teachers, it was also advised of the serious difficulties that school authorities both within and without the City were having with gangs of young people coming into schools, frightening teachers and pupils, creating disturbances and 'making nuisances of themselves in or about a public school' (Letter of Executive Secretary of New York State School Boards Associations, Inc., to Governor Dewey, March 31, 1954, in relation to bill that ultimately became section 722--b). The method chosen by the Legislature to protect the schools was a blanket prohibition against the presence of all unauthorized persons from the vicinity of school grounds. If leaflet distributors are excluded from the operation of section 722--b, then the ability of school authorities and police to protect pupils against the distribution of obscenity and narcotics in or about school premises will be impaired. The authorities will be forced to scrutinize every person near a school with leaflets in order to distinguish between those with leaflets only, and others who may have obscene matter and narcotics in addition to leaflets.

Nor do we find that the statute itself is void for vagueness and indefiniteness. The Court of Appeals held the section constitutional against attack on the same ground in People v. Johnson, 6 N.Y.2d 549, 190 N.Y.S.2d 694, 161 N.E.2d 9. There Johnson actually invaded the school building and grounds of a country school. The fact that the activities of appellants took place on the street in front of the entrance of a New York City public school does not thereby legitimatize their conduct. We must give to the statute a sensible construction with relation to the evils sought to be proscribed. The protection to be afforded pupils may not depend upon the circumstance that the school in one case embraces an area of many acres in a rural community while in another the school is devoid of grounds and fronts directly on a public street in a large city. The 'section was designed to exclude from school areas degenerates, narcotic peddlers, vandals and the like' (dissenting opinion of Fuld, J., People v. Johnson, supra, at page 554, 190 N.Y.S.2d at page 698, 161 N.E.2d at page 12). At least as applied to appellants' conduct some five feet from the main entrance to the school, the statute, in using the term 'in or about' a school building, is not lacking in specificity (Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965)).

Moreover, section 722--b does not impose a prior restraint on free speech. The restraint imposed by the statute is not one affecting speech. It places an absolute ban on the physical presence of unauthorized persons in the limited areas in or about school buildings. For that matter, the appellants failed to offer any proof of arbitrary or discriminatory application of the requirement of prior approval by the school authorities.

We too are concerned in protecting our citizens in their ancient right to use of the streets for the dissemination of information and opinion. This right, nevertheless, ranks no higher than other rights protected by the constitutions and is subject to reasonable restrictions when necessary to safeguard the public interest. The right is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order (Hague v. C.I.O., 307 U.S. 496, 515 59 S.Ct. 954, 963, 83 L.Ed. 1423; People v. Stover, 12 N.Y.2d 462, 469, 240 N.Y.S.2d 734, 739, 191 N.E.2d 272, 276). It is our 'delicate and difficult task' to weigh 'the circumstances' and appraise 'the substantiality of the reasons advanced in support of the regulation of the free enjoyment of' speech. (Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155.)

It must be observed that the statute in the case at bar is not directed at freedom of speech. The fact that it may have a partial and incidental deterrent effect on free speech is justifiable and a necessary concession to the overriding public interest in the maintenance of order and the protection of pupils caused 'by the presence of unauthorized persons invading the precincts of our schools such, for instance, as dope peddlers, sex offenders, idlers and trouble makers in general, and other persons harboring some illegitimate purpose involving the innocence of immature school children and youth.' (People v. Johnson, supra, 6 N.Y.2d at page 552, 190 N.Y.S.2d at page 696, 161 N.E.2d at page 11.) Moreover, appellants may not exercise this liberty by taking a stand directly in front of the main entrance of a school, forming a cordon which blocked the erupting mass of students. Prohibition of such conduct would not abridge the constitutional liberty. In order to assure the safety and convenience of its citizens a state may regulate the times and places and the conduct of those using the streets to impart information through speech or distribution of literature. (Cantwell v. State of Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213.) When those sought to be safeguarded are the youth of the community, any conflict arising between the remedy provided by the Legislature and First Amendment freedoms must be resolved in favor of the statute designed to insulate students from the dangers and evils enumerated. Because of their very youth and inexperience, their susceptibility and exposure to the vices of a large city, the measure of control which the state may exercise for the protection of school students is of much wider scope than that which might be exercised for the community at large. (...