People v. Winston

• Decision Date: 03 September 1970
• Citation: 314 N.Y.S.2d 489,64 Misc.2d 150
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Garson N. WINSTON, Defendant.
• Court: New York Children's Court

Page 489

314 N.Y.S.2d 489

64 Misc.2d 150

The PEOPLE of the State of New York, Plaintiff, v. Garson N. WINSTON, Defendant.

Monroe County Court.

Sept. 3, 1970.

Jack B. Lazarus, Monroe County Dist. Atty., for the People (Lloyd H. Butterfield, Brockport, of counsel).

Robert C. Napier, Rochester, for defendant.

DECISION

DAVID O. BOEHM, Judge.

The defendant was convicted on December 10, 1968 after a jury trial, of the crime of Inciting to Riot in violation of Sec. 240.08 of the Penal Law of the State of New York. The evidence submitted by both the People and the defense shows that on the evening of October 11, 1968, during a concert given by the singer, Aretha Franklin, at the Rochester War Memorial, a scuffle broke out between a member of the audience and a security guard inside the auditorium. Four or five security officers intervened and took the man inside a room to the right of the stage. A crowd collected and a young man said, 'They are going to kill him, they are going to kill him. They can't kill my brother.' A group of friends gathered at the auditorium door and someone remarked, ,'let's break in there.' By the time the concert ended, about 11 P.M., a mob of people had collected at the Broad Street entrance trying to get inside. Unable to get in, the mob moved to Exchange Street to try to force its way in through the front entrance. In the meantime, the police had been called. Two units were dispatched, but five minutes later a call was made for all available units because of the badly deteriorating situation. On his arrival, police officer Accorso, the sole witness for the People, found the outside upper level plaza on Exchange Street 'completely saturated with people.' Four police officers went inside the lobby to get the people out of the auditorium and officer Accorso remained outside to move the crowd of almost 150 to 200 people. There was considerable tumult. The crowd was noisy and shouting; beer bottles and rocks were thrown. Some police officers were struck by flying missiles and required hospital emergency treatment. A surging group of fifteen to twenty people, led by the defendant, was trying to push and force its way inside and spat at the door. Some gained access and fought with the police officers inside who were struggling to close the doors. Three times the defendant and his group were asked by Officer Accorso to leave, but the defendant continued to urge the crowd on, shouting: 'You have no right to keep us out of here. We have all the right to stay in there, we paid our fare.' (which the defendant, by his own admission, had not paid). 'These cops can't get away with what they are doing. I will move when I'm ready.' Upon observing some police officers making an arrest, the defendant and others in his group called out, 'They can't get away with that. If we had guns we would break it up. They wouldn't do that if we had guns.' When the police asked him to move on, he answered, 'We ain't going no place' and urged the people not to leave, shouting, 'Stay right here. They can't make us move.'

The defendant was finally arrested by Officer Accorso at 11:45 P.M., approximately one-half hour after the police arrived. The record is totally free of anything which would indicate that the police, by their words or conduct, did anything to provoke the crowd or ignite an already explosive situation. They acted moderately and with restraint. They reassured the boy whose brother had been involved with the security officers inside.

The defendant denied urging the crowd to stay or to force the doors. On the contrary, he testified that he told the crowd to go home before something happened. 'I was on the sidewalk in front of the steps', he testified. 'It was sort of like a separation. The people had the sidewalk. To the left there was a crowd, to the right there was a crowd. The largest crowd was on the right side of the sidewalk. I came down the steps; therefore I was on the right. The police kept telling them to back up, back up. They they were forced back. Then they turned their attention to the left side of the sidewalk and then would come up again. I told them all, 'You might as well go home, nothing's going to happen. All you will do is get yourselves in trouble. " (Emphasis supplied)

However, the jury, under a proper charge from the court, resolved the fact question against the defendant by its verdict of guilty.

The defendant in this appeal raises the following arguments for reversal: (1) that the People failed to prove a prima facie case; (2) that the verdict was against the weight of evidence; (3) that the statute under which the defendant was convicted is unconstitutional in that it violates the First Amendment to the United States Constitution; and (4) that cumulative errors require reversal.

In each of the defendant's arguments, the Court finds no merit and therefore affirms defendant's conviction.

Section 240.08 of the New York State Penal Law reads as follows:

'A person is guilty of inciting to riot when he urges ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm.'

This section was designed to penalize those who urge riotous conduct without the necessity of proving a consummated riot or an agreement to riot by persons assembled with the accused. The Practice Commentary to this section in Vol. 39 of McKinney's Consolidated Laws, at pages 121--122, discusses the conduct intended to be covered.

'This crime, which is new, covers conduct in the riot area which does not amount to either the crime of riot or the crime of unlawful assembly. A rabble rouser who urges a group of twenty people to go out and break windows in a Negro neighborhood and acquires the acquiescence of at least four of them is guilty of unlawful assembly even if the project does not materialize (Sec. 240.10; See former Penal Law Secs. 2092, 2094). In the absence of such approval or cooperation, however, he is not guilty of unlawful assembly, for he has not assembled with four or more other persons for the preconceived or agreed purpose of engaging in riotous conduct (Sec. 240.10). The instant section fills the indicated gap with the crime of inciting to riot.'

The question presented, therefore, is whether the defendant's acts and words in such volatile and combustible circumstances can reasonably be interpreted as urging riotous conduct. Riotous conduct is defined by Sections 240.05 and 240.06 of the Penal Law as "tumultuous and violent conduct' creating a grave risk of causing public alarm'.

The same Practice Commentary, (at pp. 118--119), discussing the purpose of these two sections defining the different degrees of riot, sheds further light upon the intention of the legislature, pointing out: 'The phrase 'tumultuous and violent conduct', however, in itself clearly means much more than mere loud noise or disturbance. It is designed to connote frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts.' (cf. American Law Institute, Model Penal Code, Tent. Draft No. 13, Sec. 250.1).

The defendant's words and conduct obviously amounted to more than just loud or even agitated conversation. They were clearly designed to further incite an already turbulent crowd and to effect a re-entry into the War Memorial by physically overwhelming the outnumbered police. Had they been overrun, the consequences to the Security Guards inside may have been bloody and brutal. No other reasonable interpretation can be made of the defendant's purpose, especially in view of the proof that, at the same time, rocks and bottles were being hurled.

The defendant's conduct was at least as serious as the conduct interdicted in People v. Ascher, 57 Misc.2d 249, 291 N.Y.S.2d 648, where the court found that the defendant's activity was designed to aid an Anti-Vietnam demonstration by disrupting traffic and generating confusion and disorder in a much travelled thoroughfare in New York City, and upheld an information accusing the defendant of Inciting to Riot.

Regarding the instant case, this court finds that the People presented a prima facie case which, if believed by the jury, would warrant the defendant's conviction.

With respect to defendant's second argument that the verdict was against the weight of the evidence, it is clear from reading the record that the witnesses called by the defense were either character witnesses not present at the War Memorial on October 11, 1968 or persons who, by their own admissions, were not in the company of the defendant during the crucial time it was alleged the defendant committed the crime for which he was convicted.

The defendant next contends that Section 240.08 of the Penal Law is unconstitutional in that it infringes upon the fundamental right of freedom of speech. However, the statute in question does not unconstitutionally impinge upon First Amendment rights. It is designed to prevent the very violence which was intended by this defendant and which would have probably erupted if the police had not dampened the fuse by placing him under arrest. Its lawful purpose is to prevent the outbreak of violence by discouraging such language and conduct as can be reasonably anticipated would cause civil disorder. (cf. People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30).

The reasoning of Judge Basel upholding the statute as constitutional in People v. Ascher, supra, is persuasive and compelling. His review of the common law history and the numerous authorities he cites satisfies this court of the constitutionality of Section 240.08 as well as of its constitutional application in this case. (See also, People v. Feiner, 300 N.Y. 391, 91 N.E.2d 316, aff'd 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295; People v. Turner, 48 Misc.2d 611, 265 N.Y.S.2d 841, aff'd 17 N.Y.2d 829, 271 N.Y.S.2d 274, 218 N.E.2d 316, remitt. am'd 18 N.Y.2d 683, 273 N.Y.S.2d 431, 219 N.E.2d 879, cert. granted 385 U.S. 917, 87...