People v. Turner

• Citation: 265 N.Y.S.2d 841,48 Misc.2d 611
• Parties: The PEOPLE of the State of New York, Respondent, v. William TURNER et al., Defendants-Appellants.
• Decision Date: 12 November 1965
• Court: New York Supreme Court — Appellate Term

Page 841

265 N.Y.S.2d 841

48 Misc.2d 611

The PEOPLE of the State of New York, Respondent, v. William TURNER et al., Defendants-Appellants.

Supreme Court, Appellate Term, First Department.

Nov. 12, 1965.

Frank S. Hogan, Dist. Atty., New York County (Raymond S. Hack, New York City, of counsel), for respondent.

Nanette Dembitz, New York City, for appellants % New York Civil Liberties Union.

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

HECHT, Justice.

The convictions all spring from a public meeting held by the so-called 'May 2nd Movement', an organization formed at Yale University in March, 1964, for the purpose of protesting American involvement in the war in Vietnam. The meeting was held in Duffy Square, an island located at the intersection of Broadway and Seventh Avenue and bounded by 46th and 47th Streets.

The prosecution's witness, Detective Behr, testified that on August 8, 1964, at approximately 4:00 P.M., the defendant Laub 'mounted the steps on the southern end of the statue' located in Duffy Square and proceeded to speak through a 'battery-powered megaphone' which provided loud amplification. The witness added:

'He (Laub) stated that the May 2nd movement had called this meeting and then proceeded to introduce Mr. Philip Luce, whom he stated would be the chairman for this meeting. Mr. Luce began to speak. At this point, representatives of the Police Department, a captain and an inspector, spoke to Mr. Luce, Mr. Laub, Mr. Maher, and, I believe, also Mr. Copeland.

* * *

* * *

'The police captain informed Mr. Laub, Mr. Maher, and Mr. Mopeland [sic], and Mr. Luce, that at the present time the demonstration was interfering with pedestrian and vehicular traffic; that people had to walk into the street to get by.

* * *

* * *

'That in view of this interference with pedestrian and vehicular traffic, that the meeting would have to be terminated at this location at this time.

'Mr. Laub then took the battery-operated megaphone again and put it up to his mouth and proceeded to speak into it and spoke to the people assembled there. There were approximately two hundred people assembled there. He stated to them that this captain--I believe he stated, 'The captain standing on my left, I think he should be standing on my right, has informed me that we can't continue our peaceful demonstration here.'

'Then he informed the people that in spite of this, they would continue their demonstration and he again gave--I believe he gave the megaphone to Mr. Copeland--no, to Mr. Luce, again. Mr. Luce then continued to speak and introduce Mr. Vincent Copeland. Mr. Copeland spoke into another battery-operated megaphone which he carried. He spoke to the people there, speaking of the crimes of American imperialism against the working people.'

The captain again told the four above-named defendants that the demonstration interfered with pedestrian and vehicular traffic and had to be terminated, and again the defendant Laub announced his defiance of this request.

Behr further testified that in the area surrounding the Square there were approximately 4,000 to 5,000 people. Pedestrians 'were forced to go into the street to walk around the people assembled * * * for the demonstration' and cars veered sharply right on Broadway and left on Seventh Avenue 'to avoid persons who were in the street walking north and south around the demonstration'. Some of the demonstrators, including some defendants, were in the street. There was chanting and shouting ('Let him speak') and drums beating and the defendant Maher struck a police horse with a rolled-up placard. There were 15 or 16 police officers present, two of whom were on horseback. Some pedestrians complained to the police of having to walk in the streets. 'There was a lot of shouting going on' but Behr did not know which of the defendants were shouting or what they were shouting prior to the police captain's order to disperse.

Patrolman Koopman testified that after the second command was defied by Laub:

'* * * the captain directed the ten patrolmen and one sergeant, who were across the street, to come over and disperse the crowd and also the two officers on horses and they came to the crowd from the Seventh Avenue side and they started telling everybody to disperse and at that time--then the horses came on behind the foot patrolmen and then Mr. Maher ran past me and ran over to one of the horses and started smacking it with some kind of a sign, or something. I don't know what he was hitting it with. That's when everybody started shouting and yelling and running.'

As a result of the commotion on Duffy Square, a crowd was caused to collect, numbering approximately 2,000.

Officer McNulty testified that defendant Meisner 'was running around * * * calling to others, shouting that they did not have to leave; that they could stay'. The officer told Meisner, 'he must keep moving and not to try to encourage these people to stay any longer. He continued to shout that this is America' and was then arrested. Defendant Jerome was told to 'move away' after he was observed 'running from one group to another around the park', behind a mounted policeman who was attempting to disperse the crowd, and shouting that the demonstration was lawful and 'the fascist police had no right to stop them'. Jerome refused to move and was arrested.

Patrolman Engelhardt testified that he arrested the defendants Shallit and Chadwick. Miss Chadwick 'was standing on the sidewalk yelling' to officers who were attempting to remove the defendant Kunis after he lay down in the street, 'Leave him alone facists [sic]'. Chadwick then sat down on the sidewalk herself, refused to get up, and when the officer 'went to pick her up * * * she started punching me and went to bite me'. Defendant Shallit was shouting to the demonstrators not to move calling the police 'fascists' and shoving and pushing officers.

Patrolman Coffey testified that defendant Rhoads was screaming and running, and when he refused to leave the Square, he was arrested. As the officer was taking Rhoads to a commandeered cab, 'Ostrow came over and told me to leave the defendant (Rhoads) alone'--he (Ostrow) was screaming 'fascist cop' and was told to be quiet or he would also be arrested. He refused and was arrested.

Patrolman Campbell testified that after Captain McAllister spoke to Laub about dispersing, Laub, through the megaphone, told the crowd not to break up and called the police 'fascist cops'. The officer asked Laub 'to move off the sidewalk', Laub refused and was arrested.

Officer Hines testified that defendant Copeland spoke to the crowd through a megaphone and 'was going back and forth across Duffy Square'. Copeland was asked if he had a permit for use of the megaphone, claimed he did not need one, was ordered to leave the area, refused, and was arrested.

Patrolman Fahy testified that defendant Kunis was 'yelling and screaming 'fascists, police brutality, gestapo", was told to stop or be arrested, ran 'into the middle of Broadway and laid down', refused to move, causing traffic to back up, and was arrested and carried to a radio car. Defendant Eckhardt was also 'lying' in Broadway, refused to get up, and was assisted to his feet and then arrested.

Patrolman Knoll testified that defendant Gelles was standing on the sidewalk with two others, was told he was blocking traffic and should move, ranted at the officer about 'fascist cops', refused to move on, invited his own arrest, and was arrested. The officer was placing Gelles in a cab when he saw the defendant Kyllingstad slap a police sergeant with whom she had been 'loudly conversing'. She was then arrested.

Patrolman Walsh testified that he arrested the defendants Apter, Martin and Teahan. Apter was running back and forth from street to sidewalk telling the crowd not to obey the police orders, was told to desist, continued his shouting to the crowd, and was arrested. He then threw himself on the ground and, as the officer tried to put him in a cab, defendants Martin and Teahan intervened and attempted to take Apter away while yelling 'Police brutality * * * gestapo'. They were warned to move away or be arrested, refused, and were arrested.

Upon cross-examination, Officer Walsh testified that in his opinion there were 'about 250 to 300' people present at the demonstration, traffic was stalled because 'at intervals the crowd would keep running back and forth into the street with placards * * * so, we attempted to get them back on the sidewalk, to put the traffic through'.

Patrolman Annitto testified he arrested the defendants Maher and Turner. Maher was 'running around * * * waving a placard. He struck a police horse with the placard' and was arrested. 'Turner was screaming and hollering and trying to keep two policemen from keeping the prisoner they were trying to bring to the car'.

Defendant Philip Luce, the first witness called by the defense, testified that he arrived at Duffy Square on August 8, 1964, at approximately 3:45 P.M. He was an organizer and leader of the meeting and about 10,000 leaflets had been distributed around the city announcing the meeting. Before the speeches started, Luce and some others present were told by a uniformed policeman:

'* * * that we could not hold a meeting there; that there was a ban on demonstrations in Times Square; that we could move either north of 59th Street or south of 40th Street and hold a meeting; but that no meetings would be allowed within that area.'

Luce further testified that about 20 or 25 people were given identifying arm bands and were placed around the perimeter of the Square 'in charge of keeping the crowd orderly' and preventing people from going out into the street. About 100 to 150 people were gathered at the Square for the speeches. Laub opened the meeting by stating it would be 'a peaceful, orderly meeting', introduced him (Luce) and he spoke briefly on behalf of the 'May 2nd Movement'. Luce then...