163 Misc. 2d 382 | Nassau County District Court | 1994
OPINION OF THE COURT
The defendant is charged with trespass in violation of Penal Law § 140.05, and moves for an order pursuant to CPL 170.30, 170.35, 100.15 and 100.40 dismissing the information on the grounds that the information is facially insufficient and that the instant prosecution is violative of defendant’s right to free speech and expression under the First Amendment of the United States Constitution and article I, § 8 of the New York Constitution. Oral argument was heard on the motion and decision was reserved.
BACKGROUND
This criminal proceeding was commenced on or about September 19, 1994, with the filing of an information charging the defendant with the violation of Penal Law § 140.05. On October 25, 1994, a superseding information charging the defendant with the same offense was filed, and the first instrument was dismissed upon defendant’s arraignment on the latter in accordance with CPL 100.50 (1).
The nonhearsay factual allegations of the superseding information as sworn to by complainant Thomas Cusack, a representative of St. Vincent DePaul Church and member of the church feast committee, allege that on September 9, 1994, at approximately 10:59 p.m., the church was holding its annual feast in the church parking lot, at which time the complainant observed the defendant, a candidate for Judge of the District Court, distributing campaign literature in violation of a diocese and church rule prohibiting the distribution of
The supporting deposition of Father Joseph Hickey, pastor of St. Vincent DePaul Church, confirms that Thomas Cusack is a committee member of the church’s feast committee and, as such, is authorized to exclude from church premises any person who intentionally violates the diocese and church rule prohibiting the distribution of literature on church premises. The supporting deposition of Ralph Reale, feast committee chairman, further confirms the existence of the rule prohibiting the distribution of literature, and states that signs were posted setting forth the rule, that he had the authority to act and speak for the church with respect to enforcement of the rule, and that he had requested the Nassau County Police Department to arrest anyone who refused to stop handing out such literature and leave the church property.
FACIAL SUFFICIENCY
Turning first to that portion of the motion seeking dismissal of the information for facial insufficiency, it is well settled that an information, to be sufficient on its face, must contain nonhearsay allegations in the factual part of the information and/or any supporting depositions filed with it, which establish, if true, every element of the offense charged and the defendant’s commission thereof. (CPL 100.40 [1] [c].) The non-hearsay allegations must be sufficient to establish a prima facie case. (People v Alejandro, 70 NY2d 133, 138 [1987]; CPL 100.15 [3].)
The defense contends that the superseding information, filed subsequent to the filing of the instant motion, is facially insufficient. The defense argues that the superseding information lacks the requisite element of knowledge — specifically, that the defendant remained on the premises knowing that his remaining was unlawful.
The factual allegations of the superseding information together with the supporting depositions filed with it are sufficient to establish, if true, each and every element of the offense of trespass and the defendant’s commission thereof (CPL 100.40 [1] [c]), and establish a prima facie case against the defendant (People v Alejandro, 70 NY2d 133, supra). The element of knowledge has adequately been pleaded by the nonhearsay factual allegations that the defendant was told to stop distributing literature and, upon failing to stop, was then told to leave by an authorized representative of the church and by police officers. Whether the defendant actually possessed the requisite knowledge upon which to base a conviction for trespass is a factual issue which must be determined at trial. The fact that the defendant may have such a defense to the prosecution does not, however, provide a ground upon which to dismiss the information for facial insufficiency, and the motion to dismiss on such ground is denied.
FREEDOM OF EXPRESSION
The defendant next contends that the instant prosecution violates his right to freedom of speech as guaranteed by the Federal and State Constitutions. The profoundest thought is rendered meaningless when cloistered. Without freedom of expression thought becomes checkered and atrophied. (Kovacs v Cooper, 336 US 77 [1949].) Freedom of speech is "the matrix”, the indispensable condition of nearly every other form of expression (Palko v Connecticut, 302 US 319 [1937]).
The First Amendment of the US Constitution was designed by its framers to foster unfettered discussion and free dissemination of opinion dealing with matters of public interest and governmental affairs. (Mills v Alabama, 384 US 214, 218-219 [1966].) It embraces the freedom to distribute information and materials to all citizens, a freedom "clearly vital to the
The First Amendment, however, does not protect rights of speech and assembly against interference or impairment by private individuals. The Amendment imposes no limitations upon "the owner of private property used nondiscriminatorily for private purposes only,” even though such use may entrench upon the speech and assembly activities of other persons. (Lloyd Corp. v Tanner, 407 US 551, 567 [1972].)
It is well settled that a State may provide through its Constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more expansive than their Federal counterparts. (PruneYard Shopping Ctr. v Robins, 447 US 74, 80-82 [1980]; see, Oregon v Hass, 420 US 714, 719 [1975]; Cooper v California, 386 US 58, 62 [1967].) Our State Constitution has long recognized that people have a right to freedom of expression. "Every citizen may freely speak, write and publish his sentiments on all subjects” (NY Const, art I, § 8).
Both "State and Federal constitutional guarantees of freedom of speech protect the individual against action by governmental authorities,” but do not extend to the actions of private persons. (SHAD Alliance v Smith Haven Mall, 66 NY2d 496, 502 [1985].) Private conduct may, however, be found to constitute State action and thus be subject to constitutional protection where the government has participated in the private conduct to such an extent that the conduct can be deemed to be "fairly attributable to the State.” (Lugar v Edmondson Oil Co., 457 US 922, 937 [1982]; Matter of Wilson, 59 NY2d 461, 476 [1983]; People v Kern, 149 AD2d 187, 230 [2d Dept 1989], affd 75 NY2d 638 [1990], cert denied 498 US 824.) The level of governmental participation in the private conduct giving rise to the constitutional challenge must be significant in order to trigger constitutional protections. (SHAD Alliance v Smith Haven Mall, 66 NY2d, at 506, supra.)
Applying these criteria to the case at bar, the first factor determinative to a finding of State action is not present since the source of authority for the private action is not derived from the State, but is instead a private diocese and church rule prohibiting the distribution of literature on church property (compare with People v Kern, 149 AD2d 187, 231, supra, wherein a finding of State action was based, in part, upon the fact that a State statute provided the source of authority for the private action complained of). Upon considering the second factor enumerated by the Court in SHAD (supra), defendant’s contention that the State’s regulation of the church feast mandates a finding of State action because a Town of Hempstead building permit and State gambling and liquor permits were required for the function is found to be unconvincing. A private activity is not elevated to the level of State action merely because it is regulated by a governmental entity. (See, Blum v Yaretsky, 457 US 991, 1004 [1982]; Jackson v Metropolitan Edison Co., 419 US 345, 350 [1974].) The level of regulation of the church feast was relatively limited and did not convert otherwise private activity into State activity.
The presence of police officers to patrol the church grounds and enforce the church’s rule prohibiting the distribution of literature similarly cannot be said to constitute meaningful State participation in the private activity. "Ultimately, enforcement of all private rights must come through some type of governmental action, whether the courts (as was the case in
The defendant argues that because both gambling and the sale of alcoholic beverages were permitted at the church feast, and because a "park-like atmosphere” was created, there has been a delegation of a traditional State function to a private person warranting a finding of State action. As previously noted, a private activity is not deemed to constitute State action merely because it is subject to State regulation (see, Blum v Yaretsky, 457 US 991, supra; Jackson v Metropolitan Edison Co., 419 US 345, supra). The fact that gambling and the sale of alcoholic beverages may have been permitted at the church feast did not effect a delegation of a traditional State function to the church sufficient to support a finding of State action. With respect to defendant’s contention that the creation of a "park-like atmosphere” converted the church property into a public forum for the duration of the feast, the court notes that even where private property is found to have taken on the attributes and functions of a public forum, the characterization or use of the property "is immaterial to the issue of whether State action has been shown * * * Rather, the analysis must proceed from the other direction to show significant government participation in private conduct that limits free speech rights.” (SHAD Alliance v Smith Haven Mall, 66 NY2d, at 506, supra.)
The court is mindful of the defendant’s concerns that political candidates be afforded access to community functions for cost effective campaigning and that the right to freedom of political speech must be protected. "[T]he American political landscape extends far beyond the handful of prominent offices that capture much media attention and campaign dollars * * * [F]rec access to a 'public forum’ is essential to maintaining equal access to the field of American politics * * * [Candidates for local office heavily rely upon the public forum to enable them to convey their messages to the voting public * * * In a nation of more than eighty-thousand governmental units and several hundred thousand selected officeholders (including judges), most candidates must campaign for public office on shoe-string budgets, primarily relying on effective organization and personal appeal to attract a constituency.
Under the facts and circumstances as presented on this motion, the court finds that the defendant has failed to demonstrate a significant degree of State involvement in the church feast sufficient to support a finding that the allegedly unconstitutional conduct of the church and its representatives constituted State action. The defendant’s motion to dismiss the information on the ground that the instant prosecution violates his right to freedom of speech is denied in accordance with the foregoing.