People v. Stephen

• Decision Date: 10 February 1992
• Docket Number: AP-3
• Citation: 581 N.Y.S.2d 981,153 Misc.2d 382
• Parties: The PEOPLE of the State of New York v. Paul STEPHEN, Defendant
• Court: New York City Court

Page 981

581 N.Y.S.2d 981

153 Misc.2d 382

The PEOPLE of the State of New York v. Paul STEPHEN, Defendant.

Criminal Court of the City of New York,

New York County, Part AP-3.

Feb. 10, 1992.

Robert M. Morgenthau, Dist. Atty., New York County by: Judy C. Seiff, New York City, for the people.

Carol Novack, New York City, for defendant.

MARCY L. KAHN, Justice:

Defendant Paul Stephen is charged with disorderly conduct (P.L. sec. 240.20[1] and resisting arrest (P.L. sec. 205.30). An additional count of disorderly conduct (P.L. sec. 240.20[3] was previously dismissed on the People's motion.

In a pretrial omnibus motion, defendant has moved to dismiss the remaining disorderly conduct count on the grounds that Penal Law section 240.20(1) on its face and as applied to him unconstitutionally penalizes protected forms of expression; to dismiss both of the remaining charges in the accusatory instrument as facially insufficient pursuant to CPL secs. 170.30(1)(a) and 170.35; and for various other forms of relief. For the reasons stated, the motions to dismiss are granted.

I

The accusatory instrument in this case states in pertinent part:

On October 30, 1991, at about 0400 hours at [the corner of] 150th Street and Broadway ... [Police Officer William McGill] states that he observed defendant in a store clutching his genital area with his hands and yelling at deponent, "Fuck you," "If you were in jail, I'd fuck you, you'd be my bitch," and deponent further states defendant followed deponent out into the street repeating the above statements and actions, as well as yelling "If you didn't have that gun and badge, I'd kick your ass, I'd kill you," and that a crowd of approximately 15-20 people gathered who joined the defendant yelling, "Yeah, fuck the police."

Deponent further states that as he was placing defendant under arrest at the above location, defendant struggled with deponent violently, flailing his arms, twisting and turning his body, and butting deponent in the chest with his head, refusing to be handcuffed.

Focusing first on the charge of disorderly conduct, Penal Law section 240.20(1) provides as follows:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior....

Defendant first argues that this statute is unconstitutionally overbroad on its face and must be struck down for the reasons set forth in People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 (1989). In Dietze, the Court of Appeals declared subdivision two of the harassment statute (P.L. sec. 240.25[2] to be unconstitutional on its face under both the Federal and State Constitutions because it impermissibly penalized protected forms of expression. While defendant concedes that Dietze involved a construction of a subdivision of the harassment statute, rather than the disorderly conduct statute, he maintains that the Court's reasoning in that case applies with equal force here.

Although some lower courts have held that Dietze compels a finding that the counterpart subdivision of the disorderly conduct statute (P.L. sec. 240.20[3] is similarly unconstitutionally overbroad on its face (E.g., People v. Peralta, NYLJ, Feb. 1, 1991, p. 22, c. 6 [Crim.Ct.N.Y. Co.]; People v. Blanchette, 147 Misc.2d 50, 554 N.Y.S.2d 388 [City Ct. Watertown 1990]; People v. Cody, 147 Misc.2d 588, 558 N.Y.S.2d 793 [City Ct. Rochester 1990]; contra, People v. Perkins, 150 Misc.2d 543, 576 N.Y.S.2d 750 [Sup.Ct.App.Term 2d Dept.1991], rev'g 147 Misc.2d 325, 558 N.Y.S.2d 459 [Dist.Ct.Nassau Co.1990]; People v. Baker, 150 Misc.2d 713, 569 N.Y.S.2d 907 [City Ct. Mount Vernon 1991], in this case the charge under the counterpart subdivision of P.L. sec. 240.20(3) has already been dismissed and we are dealing instead with a charge under P.L. sec. 240.20(1).

Efforts to extend Dietze to other subdivisions of the disorderly conduct statute and to the aggravated harassment statute (P.L. sec. 240.30) have generally been unsuccessful. (E.g., People v. Steve Little, NYLJ, July 9, 1991, p. 23, c. 2 [Crim.Ct.N.Y. Co.] [240.20(1) ]; People v. Reynolds, 147 Misc.2d 29, 554 N.Y.S.2d 391 [City Ct. Watertown 1990] [240.30(1) ]; People v. Vassallo, NYLJ, May 8, 1990, p. 27, c. 1 [Crim.Ct.N.Y. Co.] [240.25(5) ].

Initially, it must be recognized that a strong presumption of constitutionality attaches to State statutes. (Matter of Quinton A., 49 N.Y.2d 328, 425 N.Y.S.2d 788, 402 N.E.2d 126 [1980]; see People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 253 N.E.2d 202 [1969]. Whenever possible, a court must construe each statute in a manner which would avoid constitutional defects. (People v. Liberta, 64 N.Y.2d 152, 171, 485 N.Y.S.2d 207, 474 N.E.2d 567 [1984], cert. denied, 471 U.S. 1020, 105 S.Ct. 2029, 85 L.Ed.2d 310 [1985]; McKinney's Cons.Laws of N.Y., Book 1, Statutes sec. 150[c] [1991]. The court should strike down a statute as unconstitutional only as a last resort, and only when unconstitutionality is demonstrated beyond a reasonable doubt. (Defiance Milk Prods. Co. v. Du Mond, 309 N.Y. 537, 540-41, 132 N.E.2d 829 [1956].

Here, defendant has failed to meet his burden of establishing beyond a reasonable doubt that the statute impinges upon protected speech. This subdivision of the statute quite clearly punishes conduct (i.e., "fighting or ... violent, tumultuous or threatening behavior " [emphasis added], rather than speech, as was the case in Dietze. Although expression may accompany such behavior, there is no reasonable possibility that this statute presents "a significant risk of prosecution for the mere exercise of free speech." (Cf. People v. Dietze, 75 N.Y.2d at 50, 550 N.Y.S.2d 595, 549 N.E.2d 1166). The statute is easily and fairly susceptible of such an interpretation and can thus be construed to meet constitutional requirements. (Cf. People v. Dietze, supra at 52, 550 N.Y.S.2d 595, 549 N.E.2d 1166). Accordingly, defendant's facial overbreadth challenge under the federal and state constitutions is rejected.

II

Defendant further contends that even if the statute is not invalid on its face, as applied to him in this case, it penalizes constitutionally protected expression. As no claim is advanced here that any fighting occurred, the issue becomes whether defendant's actions in repeatedly clutching his genitals and yelling offensive epithets at the police officer constituted impermissible violent, tumultuous or threatening behavior, where a crowd gathered and joined the defendant's chants on a City street at 4:00 a.m., or whether such activities amounted to speech protected by the First and Fourteenth Amendments to the U.S. Constitution and by Article I, section 8 of the New York State Constitution.

To answer this question, one must first identify the theory under which the People bring this prosecution. Can it be said that defendant's actions as described in the accusatory instrument come under the proscriptions of behavior which is "violent" or "tumultuous"? Those terms have been defined in the practice commentaries to another section of Penal Law article 240, riot in the second degree, as follows:

The phrase "tumultuous and violent conduct," however, in itself clearly means much more than mere loud noise or ordinary disturbance. "It is designed to connote frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts." Denzer and McQuillan, Practice Commentary to sec. 240.05, McKinney's Penal Law (1967).

(Donnino, Practice Commentaries to sec. 240.05, McKinney's Cons.Laws of N.Y., Book 39, Penal Law [1989].

Similarly, Webster's Third New International Dictionary (1986) defines tumult as "disorderly and violent movement, agitation or milling about, of a crowd accompanied usually with great uproar and confusion of voices;" violence is defined as "exertion of any physical force so as to injure or abuse."

Clearly, here defendant is not accused of stone throwing or terrorizing acts, nor of any violent movement or use of physical force. Neither can any reasonable person have understood the defendant's comments to have been ominous, serious threats to kill, sodomize or assault the officer. According to the allegations of the accusatory instrument, the defendant merely made loud, derisive, taunting comments and vulgar and demeaning gestures, and some of his comments were repeated by members of a crowd which formed at the scene. While defendant's alleged behavior can be described as provocative, offensive and verbally abusive, under either the definitions employed by the commentators or those in common usage, it simply was neither "violent" nor "tumultuous." (See People v. Little, supra; People v. Mighty, 142 Misc.2d 37, 535 N.Y.S.2d 944 [City Ct. Rochester 1988].

Thus, for defendant's conduct to come within the proscription of section 240.20(1), the People must be proceeding on the theory that the defendant engaged in "threatening behavior."

III

It has long been recognized that the guarantees of freedom of expression under the First and Fourteenth Amendments of the Federal Constitution are not absolute and do not prevent States from punishing certain "well-defined and narrowly limited classes of speech." (Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 [1972]; Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031 [1942]. Federal Constitutional doctrine permits prosecution of two such categories of speech which merit examination here.

Where words present a clear and present danger of inciting those listening to lawless action, they are not entitled to constitutional protections and may be punished. (Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 [1969]. To come within this class of unprotected speech, the words in question must be both (1) "directed to inciting or...