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PEOPLE STATE NEW YORK v. MAJOR HENRY KEARSE (11/13/68)

COUNTY COURT OF NEW YORK, ONONDAGA COUNTY 1968.NY.43464 <http://www.versuslaw.com>; 295 N.Y.S.2d 192; 58 Misc. 2d 277 November 13, 1968 THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,v.MAJOR HENRY KEARSE, WALTER MOORER, AND JOHN LEE SMITH, RESPONDENTS Frank A. Gualtieri, Jr.,District Attorney (Jon K. Holcombe of counsel), for plaintiff. Rauch, Gordon & Huffman (Richard Gordon of counsel), for Major Henry Kearse and another, defendants. MacKenzie, Smith, Lewis, Michell & Hughes (Dennis G. O'Hara of counsel), for John Lee Smith, defendant. Ormand N. Gale, J. Author: Gale


Ormand N. Gale, J.

Author: Gale

 On August 17, 18 and 19, 1967, the Mayor of the City of Syracuse invoked powers vested in him by article 17 of chapter 16 of the Revised General Ordinances of the City of Syracuse and imposed a curfew (under subdivision [d] of section 16-58 of the ordinance) to continue during certain specified periods. The defendants in the above-entitled action were arrested on the public streets of the City of Syracuse for violation of subdivision (d) of section 16-58: "Curfew. No person shall enter or remain in any public street, park, square or building in any such part or parts of the city during the hours of the day as may be prescribed by the Mayor."

Thereafter, each defendant brought a motion to dismiss the information laid against him, on grounds that the city ordinance was unconstitutional on its face in that:

"(1) It is an unlawful delegation of legislative authority from the City Council to the Mayor,

"(2) That the city has tried to legislate in an area which has been fully preempted by state law,

"(3) That it denies the Defendants their constitutionally guaranteed liberties,

"(4) It is overreaching and excessively broad and on the further ground that the ordinance is susceptible to arbitrary enforcement in violation of the Defendants' constitutional rights."

On April 17, 1968, Judge Joseph Falco of the City Court of Syracuse rendered a decision (56 Misc. 2d 586) which granted the motion of the defendants to dismiss the charges against them, and held that subdivision (d) of section 16-58 entitled "Curfews" was invalid in its entirety. In addition, the court ruled by way of obiter dicta that subdivision (b) of section 16-58 entitled "Weapons", insofar as it prohibited the carrying of weapons was also invalid, as was section 16-60: "Penalty. A violation of any provision of this article shall be punishable by a fine not exceeding Five Hundred Dollars ($500.00) and not less than Twenty-Five Dollars ($25.00), or by imprisonment not exceeding one hundred eighty (180) days, or both such fine and imprisonment." Following the entry of that order dismissing the information against the defendants, the People by Frank A. Gualtieri, Jr., District Attorney, timely filed a notice of appeal.

Subsequent to that time, no action was taken until July 29, 1968, when a motion was brought in County Court on behalf of the defendant, John Lee Smith, to dismiss the appeal of the People for failure diligently to prosecute or properly to perfect the same. The defendants, Major Henry Kearse and Walter Moorer thereupon joined in the motion to dismiss, which was heard before this court on August 13, 1968. On that same date, the arguments on the merits of the appeal were heard by the court, over the objections of defendants' counsel.

To dispose first of the merits of the argument on appeal, reference is made to the General Municipal Law (ยง 209-m), as amended by the New York State Legislature, effective July 1, 1968:

"6. a. Notwithstanding any inconsistent provision of law, general or special, in the event of natural disaster, rioting, catastrophe, or similar public emergency within the territorial limits of any local government, or in the event of reasonable apprehension of immediate danger thereof, and upon a finding by the chief executive officer thereof that the public safety is imperiled thereby, such chief executive officer may proclaim a state of emergency within any part or all of the territorial limits of such local government. Following such proclamation and during the continuance of such state of emergency, the chief executive officer may promulgate the following orders to protect life and property or to bring the emergency situation under control. Such orders may, within any part or all of the territorial limits of such local government, provide for:

"(1) the establishment of a curfew and the prohibition and control of pedestrian and vehicular traffic, except essential emergency vehicles and personnel; * * *

"(5) the prohibition and control of the presence of persons on public streets and places; * * *

"(6) The regulation and control of the possession, storage, display, sale transport and use of firearms, other ...


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