U.S. ex rel. Horelick v. Criminal Court of City of New York

• Decision Date: 05 December 1974
• Docket Number: D,No. 35,35
• Citation: 507 F.2d 37
• Parties: UNITED STATES ex rel. James HORELICK, Petitioner-Appellee, v. The CRIMINAL COURT OF the CITY OF NEW YORK et al., Respondents-Appellants. ocket 74-1183.
• Court: U.S. Court of Appeals — Second Circuit

Page 37

507 F.2d 37

UNITED STATES ex rel. James HORELICK, Petitioner-Appellee, v. The CRIMINAL COURT OF the CITY OF NEW YORK et al.,

Respondents-Appellants.

No. 35, Docket 74-1183.

United States Court of Appeals, Second Circuit.

Argued Sept. 23, 1974.

Decided Dec. 5, 1974.

Margery Evans Reifler, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondents-appellants.

Paul Chevigny, New York Civ. Liberties Union, New York City (Alan H. Levine, New York City, of counsel), for petitioner-appellee.

Before LUMBARD, FEINBERG and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal is by the State of New York from a grant of habeas corpus relief from convictions on two counts of criminal trespass under the old N.Y. Penal Law 140.10 (McKinney's Consol. Laws, c. 40, 1967); ¹ the court below denied relief for a conviction on one count of resisting arrest under N.Y. Penal Law 205.30 (McKinney 1967) which is not appealed. Appellee was sentenced on June 18, 1970, by the Criminal Court of the City of New York, which conviction was affirmed by the Appellate Division in November, 1971, and in turn by a 4-3 vote in the New York Court of Appeals in June, 1972, People v. Horelick, 30 N.Y.2d 453, 285 N.E.2d 864, 334 N.Y.S.2d 623 (1972), motion for reargument denied, 31 N.Y.2d 709, 337 N.Y.S.2d 1029, 289 N.E.2d 569, cert. denied, 410 U.S. 943, 93 S.Ct. 1372, 35 L.Ed.2d 610 (1973). The original sentence was to pay a fine of $250 or serve 30 days in jail on one criminal trespass count and the resisting arrest count, and an additional $250 or 30 days for the second criminal trespass count. District Judge Lasker below by order of November 26, 1973, held the convictions for trespass to be unconstitutional and set them aside, granting the writ in full unless the State resentenced the appellee for resisting arrest within 30 days. United States ex rel. Horelick v. Criminal Court of the City of New York, 366 F.Supp. 1140 (1973). The State appeals. ²

The district court held that Horelick's conviction deprived him of due process of law because, since the proof adduced did not support the charge of trespass, he had no fair notice of the charge against him and because it subjected him to retroactive judicial legislation. This ex post facto act, Judge Lasker held, consisted of the New York Court of Appeals' importing the law of forcible entry and detainer into the criminal trespass law. We are thus required to examine the facts underlying the conviction and to determine whether the record is totally devoid of evidentiary support of the finding of criminal trespass and then to determine whether the New York Court of Appeals retroactively amended or changed the criminal trespass statute in such a way as to punish Horelick for conduct that was not criminal at the time that he committed it. See Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 358 (1972) (obscenity statute); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (trespass statute). See also Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948).

The convictions in question resulted from incidents occurring during the wellknown, if not now too well-remembered, strike of public school teachers in New York City in 1968. This strike, it will be recalled, was held to be illegal. See Rankin v. Shanker, 23 N.Y.2d 111, 242 N.E.2d 802, 295 N.Y.S.2d 625 (1968); N.Y.Civ.Serv.Law 210 (McKinney 1973). On October 16, 1968, Mr. John Doar, the president of the Board of Education, issued a statement on its behalf reading in part as follows:

To assure that our system, partially crippled by this illegal strike, remains open and available to those administrators, teachers and students who choose to work, the Superintendent has directed all District Superintendents to open-- and keep open-- every school where any teacher, in fact where only one teacher, reports to work. He has directed that if only one teacher reports-- in the absence of other administrators-- that teacher is to be in charge of the school. In accordance with, but supplementary to, the instructions of the Board of Education and the Superintendent of Schools, the Executive Deputy Superintendent at 110 Livingston Street, Brooklyn, on October 17, 1968, issued a statement which said in part: Wherever a competent teacher of a school appears and is willing to assume responsibility for the supervision of the school, such a teacher should be designated to open the school. Please do this in writing, on official stationery, addressing the letter to the custodian.

The Executive Deputy Superintendent's declaration went on to say,

In the event that the school cannot be opened because the custodian refuses to open the school, or is not present, call the borough custodial headquarters-- as a second step, call the office of Mr. Hudson and Mr. McLaren.

Apparently some of the school custodians were sympathetic to the strike and were refusing to open the schools for those teachers who wanted to work.

On October 17 a group of teachers, including the designated 'teacher in charge' and Horelick, went to Washington Irving High School where they were assigned to teach and presented to the school custodian the 'letter of authorization' to the teacher in charge from the district superintendent. The custodian refused to open the building because he was unable to verify by phone the authenticity of the letter. Horelick nevertheless entered the building through a window with the intention of opening the doors himself. Inside the building he was stopped by the custodian who called for the police; they placed him under arrest after an altercation. Horelick's entrance was gained through a basement window which had been broken by a student that morning. While the custodian was nailing all the windows shut, Horelick had followed the student to the side of the school, jumped a fence and then entered the school through the broken window.

The second criminal trespass charge arose on Saturday evening, October 19, 1968, when at 10:00 p.m. Horelick and a group of people again entered the school, which was open that evening for a concert. Horelick announced to the custodian that they intended to stay over in the school until Mondy in order to keep the school open. Shortly thereafter approximately 40 policemen arrived, and the custodian and the police told Horelick and the group to leave. Horelick left, spoke to a lawyer outside, and reentered the building. After considerable discussion, he was again arrested for criminal trespass a few minutes after midnight on October 20, 1968.

The majority of the New York Court of Appeals, per Breitel, J., held that the issue was 'whether the resort to selfhelp by 'breaking and entering' in the classic sense, is permitted' and that this issue was 'laid to rest long ago by successive and ancient statutes relating to forcible entry and detainer (. . . former Penal Law, 2304 . . . as to use of force against the person to gain entry . . ..)' 30 N.Y.2d at 456, 334 N.Y.S.2d at 624. The majority opinion said, too, that 'ultimately, analyses related to claims of right by owners and others entitled to rights of entry under property law' are immaterial. The majority noted that Horelick did not follow the prescription for opening schools improperly closed and that he did not call Borough Custodian headquarters or the offices of Mr. Hudson and Mr. McLaren, as the October 17 directive required. Putting the issue another way, the majority said that 'the issue turns on whether the affected teachers had a 'license' or 'privilege' to open the school by surreptitious entry and force, and not whether they had a right or duty to be in the school (Penal Law, 140.00, subd. 5).' 30 N.Y.2d at 458, 334 N.Y.S.2d at 626. The policy underlying the decision was stated to be that 'It would be of the gravest consequence . . . to suggest that self-help force may be condoned or justified by an inapplicable analysis whether the school 'lawfully' should have been opened or closed.' Id. The three dissenting judges in an opinion per Bergan, J., relied on the Board of Education's directive that the schools be open 'if there is only one teacher going to the school' and that this placed a duty on Horelick to be at the school in spite of an illegal strike. The dissent said, 'That defendant came in through a window is not remarkable in the light of the hostility of the custodians who were wrongfully closing the school.' Legally, the dissent said that the prosecutor 'has not established beyond a reasonable doubt that the defendant was 'wrongfully' in the school in which he was assigned to teach . . .' and that, relying on People v. Barton, 18 A.D.2d 612, 234 N.Y.S.2d 263 (1962), a colorable claim of right-- even if it were mistaken-- -- negatived the criminal intent necessary for conviction under the predecessor to 140.10. The dissenting opinion did not, however, rely on the ex post facto argument made here and which Judge Lasker found persuasive. Apparently that argument was not made until the motion to reargue was presented to the Court of Appeals; that motion was denied without opinion. 31 N.Y.2d 709, 337 N.Y.S.2d 1029, 289 N.E.2d 569.

We cannot say that the record here was so totally devoid of evidentiary support as to raise a due process question. Garner v. Louisiana,368 U.S. 157, 163, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); United States ex rel. Terry v. Henderson, 462 F.2d 1125, 1131 (2d Cir. 1972). To be sure, a colorable claim of privilege or license is a defense to a charge of trespass under New York Law. People v. Stevens, 109 N.Y. 159, 16 N.E. 53 (1888); People v. Barton, supra; Denzer & McQuillan, Practice Commentary, 39 McKinney's Consolidated Laws at 347 (1967). Judge Lasker held that even if Horelick's entry were in fact...