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CRIMINAL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY 1968.NY.42556 <>; 291 N.Y.S.2d 648; 57 Misc. 2d 249 July 8, 1968 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.THOMAS ASCHER, DEFENDANT Frank S. Hogan, District Attorney (Bennett L. Gershman of counsel), for plaintiff. Richard H. Kuh for defendant. Amos S. Basel, J. Author: Basel

Amos S. Basel, J.

Author: Basel

 On November 14, 1967, Dean Rusk, Secretary of State of the United States, was scheduled to speak at the Hilton Hotel, 54th Street and Avenue of the Americas in New York City. The court takes judicial notice that demonstrations against the war in Vietnam were conducted in his honor across the street from the hotel by pacifists and other anti-Vietnam war groups. At about 7:15 p.m. a few blocks south of the hotel and the main demonstration, defendant stood on the sidewalk on the northwest corner of 50th Street and Avenue of the Americas, a bull horn in his hand. Barricades had been placed along the curb. Just prior to traffic moving north on the avenue, defendant walked out into the street, directed the bull horn at the crowd in front of Radio City Music Hall and said, "Come on out now." A group of about 100 persons rushed into the middle of the street.

The police on duty at the intersection were shoved aside. The traffic could not get through, could not move; the operators of the vehicles were blowing horns, shouting at the crowd to step aside. Pedestrians stood back, made no attempt to cross. There were approximately over 1,000 people on the corner; it was very noisy. The 100 remained in the center of the roadway until police, arms outstretched, moved into the crowd and pushed them back. Vehicular traffic began to move. Moments later, defendant walked into the street and shouted through the bull horn, "Come out again." The scene was repeated and also a third time when defendant again used the bull horn to exhort the crowd to "Come on out." After the third episode, defendant, an 18-year-old college student, was arrested and charged with violating section 240.08 of the Penal Law -- Inciting to riot.

Upon termination of the preliminary hearing, defendant moved to dismiss the information on the grounds (1) the statute was unconstitutional and (2) he did not incite to riot.

Section 240.08, Inciting to riot, is new to the Penal Law and no cases have as yet been reported under it. It was, however, a common-law crime. (Commonwealth v. Egan, 113 Pa. Super. Ct. 375; Commonwealth v. Hayes, 205 Pa. Super. Ct. 338; State v. Cole, 249 N. C. 733, cert. den., 361 U.S. 867; Kasper v. State, 206 Tenn. 434, cert. den., 361 U.S. 930.) In Commonwealth v. Egan (supra) the Pennsylvania court upheld the conviction of defendant on the charge of inciting to riot although there was no such crime under Pennsylvania statutory law. In North Carolina and Tennessee, convictions were similarly upheld based upon principles of common law.

The New York statute reads: "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 follows the general principles of the common-law crime defined in Corpus Juris Secundum (vol. 77, Riot, ยง 2, p. 424), "Language used must be such that in the light of all the circumstances they tend to a breach of the peace or is likely to provoke or incite a riot." The new statute is more specific and well defined than the former standard and "sufficiently definite, clear and positive to give unequivocal warning to citizens of the rule which is to be obeyed." (People v. Byron, 17 N.Y.2d 64, 66.)

The crimes of "riot" and "unlawful assembly" were defined by the prior Penal Law. The law covered conduct in the area of offenses against public order in sections 2090, 2092 and 2094 of the Penal Law (old). The defendant is therefore on notice of the new crime. (Winters v. New York, 333 U.S. 507, 515, Musser v. Utah, 333 U.S. 95, 97. See, also, People v. Epton, 19 N.Y.2d 496 [1967].) Certainly "a reasonable man subject to the statute would be informed of the nature of the offense prohibited and what is required of him." (People v. Byron, supra, p. 67.)

The statute does not contravene or impede First Amendment rights. Although the right of free speech, sets us apart from totalitarian regimes (De Jonge v. Oregon, 299 U.S. 353, 365) it does have limitations and "is not absolute at all times and under all circumstances." Chaplinsky v. New Hampshire, 315 U.S. 568, 571; Schenck v. United States, 249 U.S. 47; Near v. Minnesota, 283 U.S. 697; Dennis v. United States, 341 U.S. 494; Adderley v. Florida, 385 U.S. 39; People v. Street, 20 N.Y.2d 231.)

As the court said in Cantwell v. Connecticut (310 U.S. 296, 308): "No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot * * * When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious." The statute is not unconstitutional for vagueness. It clearly defines the number of people, 10, who must be urged to action. It describes the type of conduct it condemns broadly but carefully as "tumultuous and violent", but that description is based on the common-law crime which has been well and carefully defined in many cases. The Legislature has not "established standards so vague, indefinite, imprecise and subjective" (People v. Radich, 53 Misc. 2d 716, 725) that the statute be held unconstitutional.

The statute is therefore clearly constitutional.

There remains the crucial question -- have the People proven at this preliminary hearing that a crime has been committed and that defendant is connected with that crime?

Defendant's exhortation to "Come out now", appears to have been a prearranged code answered in each instance by about 100 people. In conjunction with the anti-Rusk demonstration four blocks to the north, the barricades along the curb, the bull horn in defendant's possession, this activity must be taken as an attempt to aid the demonstration by disrupting traffic and promoting general chaos, confusion and disorder. At 7:15 p.m. on Sixth Avenue, tempers flare easily, especially when they are aroused for no apparent cause. Defendant's actions standing alone, without adequate explanation from him, most certainly were likely to arouse "public alarm." He created a potentially explosive situation. He was "urging 100 or more persons to engage in tumultuous and violent conduct." His language was mild, but it was a call to action and the activity he urged and induced was certainly "tumultuous and violent" within the statutory description.

If the police had not brought the group under control quickly, it can readily be predicted that riot and damage to persons and property would have ensued. One thousand people were present. Defendant, an 18-year-old college student, could readily understand that his actions in that context could most likely cause a clear and present danger of "public alarm." It was a potentially violent circumstance he willfully and forcefully created.

We here face one aspect of calculated resistance to legal authority. This appears to be a coil in the wave of civil disorders, resistance to civil authority, rolling over the country. In an effort to confer respectability upon ...

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