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NYCCM: 4:30PM 9/12/06 - New York City Criminal Court Finds Parade Permit Law Unconstitional, Dismisses Charges Against Critical Mass Bicyclists.

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  • Jym Dyer
    From: Gideon Oliver 4:30PM 9/12/06 - New York City Criminal Court Finds Parade Permit Law Unconstitional, Dismisses Charges Against Critical Mass Bicyclists.
    Message 1 of 1 , Sep 12, 2006
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      From: Gideon Oliver

      4:30PM 9/12/06 - New York City Criminal Court Finds Parade Permit Law
      Unconstitional, Dismisses Charges Against Critical Mass Bicyclists.

      Attached is a copy of New York City Criminal court Judge Gesmer's decisions
      in People v. Robert Barrett, Amy Erickson, Paulette Giguere, and Olga
      Mazurkiewicz.

      ENORMOUS congratulations to Martin Leahy for his spirited defense of First
      Amendment rights.

      - Gideon

      * * *

      CRIMINAL COURT OF THE CITY OF NEW YORK
      COUNTY OF NEW YORK: PART C
      X

      THE PEOPLE OF THE STATE OF NEW YORK
      DECISION AND ORDER
      against
      Docket Numbers:
      ROBERT BARRETT, 2006NY020867
      AMY ERICKSON, 2006NY101859
      PAULETTE GIGUERE, 2006NY009696
      OLGA MAZURKIEWICZ, 2006NY015857
      Defendants.



      Robert M. Morgenthau, District Attorney, New York County, for the People in
      all four actions (ADA Marit Delozier, of counsel, in People v Barrett; ADA
      Peter Rienzi, of counsel, in People v Erickson; ADA Justin Delle Cave, of
      counsel, in People v Giguere; ADA Joseph Perry, of counsel, in People v
      Mazurkiewicz).

      Martin J. Leahy, New York County, for defendants in all four actions.


      GESMER, J.:
      This case represents another skirmish in the ongoing battle between the
      Police Department and the city's bicyclists. Defendants Amy Erickson,
      Paulette Giguere, and Olga Mazurkiewicz are each charged with one count of
      Disorderly Conduct by obstructing vehicular or pedestrian traffic (PL §
      240.20[5]) and one count of Parading Without a Permit (AC § 10.110)(the
      Parading Law). Defendant Robert Barrett is charged only with Disorderly
      Conduct. Each defendant moves for dismissal of all charges as facially
      insufficient and in the interest of justice. In addition, each defendant
      charged with Parading Without a Permit challenges that local law as
      unconstitutional on its face.


      The complaint against defendants Barrett and Erickson alleges that they were
      riding in a group of only four bicyclists. The use of the Parading Law to
      prosecute defendant Erickson is inconsistent with representations made by
      the People both in these cases and in previous cases that the Parading Law
      is used only to prosecute groups of at least twenty cyclists. Because
      the Parading Law regulates conduct protected by the First Amendment, its
      application to a small group, together with its imposition of strict
      liability on all participants, raises a concern that it inhibits the
      exercise of First Amendment rights and thus is unconstitutional. However, I
      need not reach that issue, since I find that the informations are facially
      insufficient to establish that defendants violated the Parading Law.
      Accordingly, the Court dismisses all of the charges for Parading Without a
      Permit. The Court also dismisses the Disorderly Conduct charges against
      defendants Barrett, Erickson and Mazurkiewicz, but declines to dismiss the
      Disorderly Conduct charge against defendant Giguere because she is alleged
      to have run a red light at the same time as at least 50 other cyclists,
      which the Court finds sufficient, for pleading purposes, to establish
      Disorderly Conduct.

      THE ALLEGATIONS

      In the complaint against defendant Erickson, Police Officer Thomas Lecaros
      states that, at about 8:55 p.m. on January 27, 2006, he observed defendants
      Erickson and Barrett, along with two other bicyclists,

      ". . . riding bicycles in a group of four riders, riding abreast, southbound
      in the right traffic lane on 7 Avenue between 45 and 44 Streets. Deponent
      states that as a result of the conduct of the above-described group,
      vehicular traffic at the above location was obstructed in that numerous
      vehicles, being unable to proceed in the right traffic lane, were forced to
      switch traffic lanes to avoid colliding with defendants. Deponent states
      that neither defendant nor the other bicyclists had a permit to parade at
      said location at that time."

      The complaint against defendant Barrett is identical except that the last
      sentence does not appear in the complaint against him.

      The complaints against defendants Mazurkiewicz and Giguere allege that each
      of them was part of a group of 50 to 60 cyclists at about 7:50 p.m. on
      January 27, 2006 on Third Avenue near Thirteenth St. As to defendant
      Mazurkiewicz, Police Officer Stephen Jendzo stated that he:


      ". . . observed the defendant riding on a bike parading upon the street at
      the above location, a public place, with at least fifty (50) other
      unapprehended bicyclists without a permit from the police commissioner.
      Deponent further states that deponent observed the defendant riding
      defendant's bicycle side by side with said unapprehended bicyclists at a
      slow rate of speed and that as a result of the defendant's conduct and
      conduct of said unapprehended bicyclists the flow of vehicular traffic was
      obstructed in that, vehicles were forced to drive at an extremely slow rate
      of speed on a public highway, to wit the above location."


      As to defendant Giguere, Police Officer Arthur Clarke stated:

      ". . . that deponent observed the defendant riding on a bicycle parading
      upon the street at the above location, a public place, with at least fifty
      other bicyclists without a permit from the police commissioner. Deponent
      further states that deponent observed the defendant ride her bicycle at a
      slow rate of speed at the same time that other riders rode at a slow rate of
      speed through the intersection at the above location, thereby preventing
      vehicles and pedestrians from passing and moving forward in the street.

      "Deponent further states that deponent observed the defendant riding at the
      above location, a public place, on her bicycle through a red light at the
      same time that the other said riders rode through said red light thereby
      preventing vehicles and pedestrians from passing and moving forward in the
      street."

      I. THE INFORMATION IS NOT FACIALLY SUFFICIENT AS TO THE CHARGE OF PARADING
      WITHOUT A PERMIT

      In order to be facially sufficient, the factual portion of a misdemeanor
      information must allege facts of an evidentiary character supporting or
      tending to support the charges (CPL 100.15[3]; 100.40[1][b], [c]; People v
      Casey, 95 NY2d 354, 360 [2000]; People v Dumas, 68 NY2d 729, 731 [1986]).
      In addition, the allegations of the factual part, together with any
      supporting depositions, must provide reasonable cause to believe that the
      defendant committed the offense charged (CPL 100.40([1][b]). Finally,
      non-hearsay allegations must establish, if true, a prima facie case; that
      is, they must show every element of the offense charged and the defendant's
      commission of it (CPL 100.40 [1][c]; People v Alejandro, 70 NY2d 133, 139
      [1987]; People v Hall, 48 NY2d 927 [1979]; People v Case, 42 NY2d 98
      [1977]).


      Section 10.110 of the Administrative Code of the City of New York provides,
      in relevant part, that "[a] procession, parade, or race shall be permitted
      upon any street or in any public place only after a written permit therefor
      has been obtained from the police commissioner." Participation "in any
      procession, parade, or race, for which a permit has not been issued when
      required by this section" is punishable by a fine of up to $25 or up to 10
      days in jail or both. Defendants argue that the accusatory instrument fails
      to set forth facts establishing that they participated in a procession,
      parade or race for which a permit was required, and that a permit was not
      obtained. The Court agrees.

      A. PLAINTIFFS WERE NOT ALLEGED TO BE PARTICIPATING IN AN EVENT FOR WHICH
      A PERMIT WAS REQUIRED

      1. The activity in which plaintiffs were alleged to be engaging does not
      come within the language of AC § 10.110.

      The Administrative Code does not define the terms "procession, parade, or
      race." The Police Department has issued rules defining a "parade or
      procession" as "any march, motorcade, caravan, promenade, foot or bicycle
      race, or similar event of any kind, upon any public street or roadway"
      (Rules of City of NY Police Department [38 RCNY] § 19-02(a)][the Rules]).
      Therefore, the Court must decide whether the complaint adequately alleges
      that plaintiffs were taking part in a "march, motorcade, caravan, promenade,
      foot or bicycle race, or similar event of any kind." In making that
      decision, the Court must interpret the words of Administrative Code §
      10.110, as defined by the Rules, "according to the fair import of their
      terms to promote justice and effect the objects of the law" (PL § 5.00).


      The only activity named in either the Parading Law or the Rules which
      explicitly refers to bicycles is "bicycle race." According to the
      dictionary, a "race" is a competition or contest of speed, as in running or
      riding. None of the complaints before the court contain any allegations
      which state, or from which it can be inferred, that plaintiffs were
      participating in a competitive event. Indeed, the complaints against
      defendants Giguere and Mazurkiewicz allege that they were riding at a "slow
      rate of speed," which is the very antithesis of a race. The complaints
      against defendants Erickson and Barrett imply that they were also riding
      slowly, since, otherwise, cars would not have had to switch traffic lanes to
      avoid hitting them. Therefore, I find that defendants were not
      participating in a race.


      A "motorcade" is defined as a procession of motor vehicles and a "caravan"
      as "a group of vehicles proceeding or traveling together in a file. "
      Under New York law, "vehicle" is expressly defined to exclude "devices moved
      by human power" (Vehicle & Traffic Law § 159). Since the defendants were
      all riding on bicycles operated by human power, they could not have formed a
      motorcade or caravan. The term "promenade" is equally inapplicable to
      defendants' behavior, since it is defined as "a leisurely walk, especially
      one taken in a public place as a social activity." Therefore, I find that
      defendants were not participating in a motorcade, caravan or promenade.

      That leaves open the question of whether defendants were participating in a
      "march." A "march" is an "organized walk or procession by a group of people
      for a specific cause or issue." A "procession" is a "group of persons,
      vehicles, or objects moving along in an orderly, formal manner."
      Similarly, a parade is "an organized public procession on a festive or
      ceremonial occasion." Thus, by definition, marches, parades and
      processions are organized and formal. Yet there are no facts alleged in any
      of the complaints against defendants that support a finding that they were
      participating in events that were either organized or formal. The only
      language in any of the complaints that suggests such a conclusion is the
      statement found in the complaints against defendants Giguere and
      Mazurkiewicz that they were each "riding on a bicycle parading upon the
      street." However, that statement is purely conclusory and therefore is not
      sufficient to establish that defendants were participating in a parade
      (People v Dumas, 68 NY2d 729, 731 [1986]). Consequently, I find that the
      complaints have failed to allege that defendants were participating in a
      procession, parade, race, march, motorcade, caravan or promenade.

      Nor is the complaint saved by the catchall language in the Rules which
      defines "parade or procession" to include an "event of any kind" similar to
      a "march, motorcade, caravan or promenade." If that phrase were interpreted
      to include an event which is not a march, motorcade, caravan or promenade,
      then it would not give an individual fair notice of the type of conduct
      which is prohibited. Consequently, if I were to interpret that language to
      include an unorganized group of bicyclists, I would be violating "the
      general principle that penal statutes are to be interpreted according to the
      fair import of their terms so that penal responsibility is not extended
      beyond the fair scope of the statutory mandate" (People v Harper, 75 NY2d
      313, 318 [1990]; PL § 5.00). I decline to do so. There is nothing in the
      Administrative Code § 10.110 or the Rules to alert the reasonable citizen
      that the Police Department requires four people bicycling together to obtain
      a permit, and, in the Court's opinion, nobody setting out to bicycle with
      three other people would think it was necessary to get a permit before doing
      so.


      Indeed, it appears that the City itself would not have interpreted the
      Parading Law to apply to these defendants until a few years ago. From 1994
      until 2004, the City did not take any steps to prosecute participants in
      the monthly Critical Mass bicycle rides under either the Parading Law or any
      other statute (Bray I, 346 F Supp 2d at 483). Although none of the instant
      defendants is alleged to have been participating in a Critical Mass ride, I
      can certainly infer that the City would not have applied AC § 10.110 to these
      defendants if it did not apply it to the Critical Mass riders. Therefore,
      the fact that, between 1994 and 2004, the City itself would not have
      prosecuted these defendants under the Parading Law provides further evidence
      that defendants would not have had fair notice that their conduct was
      proscribed by the Parading Law.

      Moreover, to interpret AC § 10.110 to include an event which is not
      specifically described in the statute would render it unconstitutionally
      vague. "To survive a vagueness challenge, a statute must `give the person
      of ordinary intelligence a reasonable opportunity to know what is
      prohibited' and `provide explicit standards for those who apply [the
      statute].' The degree of constitutional vagueness depends partially on the
      nature of the enactment. A stringent vagueness test applies to a law that
      interferes with the right of free speech" (Video Software Dealers Ass'n v
      Webster, 968 F2d 684, 690 [8th Cir 1992], quoting Grayned v City of
      Rockford, 408 US 104, 108 [1972], and citing Village of Hoffman Estates v
      Flipside, Hoffman Estates, Inc., 455 US 489, 498 [1982]). An interpretation
      which included defendants within the reach of AC § 10.110 solely because of
      the catch all language in the Rules would render criminal the otherwise
      legal activity of bicycling in the streets of New York City, without fair
      notice to bicyclists. Such an interpretation would render AC § 10.110
      unconstitutionally vague

      Therefore, I find that defendants were not participating in the type of
      event for which a permit is required under the plain language of AC § 10.110
      (see City of New York v Times' Up, Inc., 11 Misc 3d 1052[A], 10 [Sup Ct, NY
      County 2006][Concluding that AC § 10.110 is not applicable to Critical Mass
      riders]).

      2. A Narrow Interpretation of AC § 10.110 Is Necessary to Avoid
      Constitutional Doubts


      The People argue that the language of AC § 10.110 should be read broadly
      enough to encompass defendants' alleged conduct (Delle Cave Aff 6; Perry
      Aff 6.) Defendants argue that the Parading Law is unconstitutional.
      Had I found that the complaints were facially sufficient to establish that
      defendants had violated AC § 10.110, then I would have to address
      defendants' constitutional challenges to that section. For the reasons
      discussed below, I would be compelled to find that the Parading Law is
      unconstitutional. That provides a further impetus for interpreting the
      Parading Law narrowly and finding it inapplicable to defendants, as it is
      preferable to interpret a statute so as to avoid a finding of
      unconstitutionality (Cipolla v Golisano, 84 NY2d 450, 455 [1994]; see also
      In re Jacob, 86 NY2d 651, 667 [1995]["Where the language of a statute is
      susceptible of two constructions, the courts will adopt that which avoids
      injustice, hardship, constitutional doubts or other objectionable
      results"]).

      Parading and other forms of public assembly are explicitly protected by the
      First Amendment. "The use of streets and other public places for the
      exercise of the right to free speech and peaceable assembly . . . has `from
      ancient times, been a part of the privileges, immunities, rights, and
      liberties of citizens"' (People v Taub, 37 NY2d 530, 531-532 [1975], quoting
      Hague v C. I. O., 307 US 496, 515 [1939]; see also Hurley v Irish-American
      Gay, Lesbian & Bisexual Group of Boston, 515 US 557, 568-569 [1995]).
      Cities nonetheless have a legitimate interest in regulating parades, and
      other large gatherings which may disrupt traffic and create the potential
      for disorder (Cox v State of New Hampshire, 312 US 569, 574 576 [1941];
      Rosen v Port of Portland, 641 F2d 1243, 1247 [9th Cir 1981]). "The
      authority of a municipality to impose regulations in order to assure the
      safety and convenience of the people has never been regarded as inconsistent
      with civil liberties but rather as one of the means of safeguarding the good
      order upon which they ultimately depend" (Cox v State of New Hampshire, 312
      US at 574). However, since prior restraints on First Amendment freedoms are
      strongly disfavored (Shuttlesworth v City of Birmingham, 394 US 147 [1969];
      MacDonald v Safir, 206 F3d 183, 189 [2d Cir 2000]), the limits which are set
      on public gatherings must be defined "not by mere rationality of purpose but
      by a more stringent requirement of real necessity" (People v Taub, 37 NY2d
      at 532). Therefore, permit procedures may regulate the time, place and
      manner of public assemblies as long as the regulations meet constitutional
      standards (Thomas v Chicago Park District, 534 US 316, 323 [2002]). Such
      regulations will be subject to strict scrutiny if they are not content
      neutral (id. at 321). Even content-neutral restrictions "may not delegate
      overly broad licensing discretion to a government official," and must be
      "narrowly tailored to serve a significant governmental interest" (Forsyth
      County, Ga v Nationalist Movement, 505 US 123, 130 [1992]; see also People v
      Katz, 21 NY2d 132, 135 [1967]). The requirement of narrow tailoring
      requires that the permit scheme may not "burden substantially more speech
      than is necessary to further the government's legitimate interests" (Ward v
      Rock Against Racism, 491 US 781, 799 [1989]).

      Applying these criteria, I would find, if compelled, that the Parading
      Without a Permit law is constitutionally suspect because it requires that
      even small groups obtain permits, and because it applies strict liability.

      a. AC § 10.110 IMPERMISSIBLY APPLIES TO SMALL GROUPS


      The primary justification for requiring individuals to obtain permits before
      engaging in parades and other forms of expressive speech is the potential
      for disruption to the community when, for example, a large group gathers in
      a park or parades on a city street (Shuttlesworth v City of Birmingham, 394
      US at 152; Cox v State of New Hampshire, 312 US at 576). Consequently,
      that justification disappears when individuals gather in small groups.
      Based on this principle, two recent decisions by two different federal
      Courts of Appeals invalidated licensing regulations that applied to small
      groups as facially unconstitutional because they were not narrowly tailored
      (Santa Monica Food Not Bombs v City of Santa Monica, 450 F3d 1022 [9th Cir
      2006]; American-Arab Anti-Discrimination Committee v City of Dearborn, 418
      F3d 600 [6th Cir 2005]). The Court of Appeals for the Ninth Circuit
      explained:

      "[T]he significant governmental interest justifying the unusual step of
      requiring citizens to inform the government in advance of expressive
      activity has always been understood to arise only when large groups of
      people travel together on streets and sidewalks. Small groups, however, can
      also `march' and `assemble' for expressive purposes, and can do so without
      interfering with the free flow of traffic (except in the trivial respect
      that anyone walking on a public sidewalk or roadway takes up space and
      therefore prevents someone else from traveling precisely the same route).
      Without a provision limiting the permitting requirements to larger groups,
      or some other provision tailoring the regulation to events that
      realistically present serious traffic, safety, and competing use concerns,
      significantly beyond those presented on a daily basis by ordinary use of the
      streets and sidewalks, a permitting ordinance is insufficiently narrowly
      tailored to withstand time, place, and manner scrutiny."

      (Santa Monica Food Not Bombs v City of Santa Monica, 450 F3d at 1039
      [citations omitted]).


      Similarly, the Sixth Circuit invalidated a licensing ordinance which did not
      set a minimum size for the gatherings which required a permit, holding that
      it was overbroad because "under the Ordinance as written, any procession of
      people with a common purpose or goal, whether it be a small group of
      protestors or a group of senior citizens walking together to religious
      services, are conceivably required to obtain a permit" (American-Arab
      Anti-Discrimination Committee v City of Dearborn, 418 F3d at 608). The
      Court also found the ordinance not to be narrowly tailored because the
      city's "significant interest in crowd and traffic control, property
      maintenance, and protection of the public welfare is not advanced by the
      application of the Ordinance to small groups" (id.; see also Cox v City of
      Charleston, SC, 416 F3d 281, 285 [4th Cir 2005] [invalidates parade
      ordinance that could require permit for groups of two]; Burk v
      Augusta-Richmond County, 365 F3d 1247 [11th Cir 2004][invalidates
      content-based licensing scheme that applies to groups of as few as five
      participants]; Douglas v Brownell, 88 F3d 1511, 1524 [8th Cir
      1996]["applying the permit requirement to groups as small as ten persons
      compounds our conclusion that the parade permit ordinance is not narrowly
      tailored."]; Grossman v City of Portland, 33 F3d 1200, 1207 [9th Cir
      1994]["we simply cannot agree that six to eight people carrying signs in a
      public park constituted enough of a threat to the safety and convenience of
      park users even the adherents of the Rose Festival to justify the
      restrictions imposed on their speech here"]; Cmty for Creative Non-Violence
      v Turner, 893 F2d 1387, 1392 [DC Cir 1990][invalidates statute that
      regulates expressive activities regardless of the size of the group]).

      The local law before the Court, AC § 10.110, sets no minimum size for a
      group for whom a permit is required (cf. Thomas v Chicago Park District,
      534 US 316 [2002][finding constitutional a licensing scheme which applied to
      groups of fifty or more]). This is one of the reasons that Judge Harris
      found the Parading Law unconstitutional in People v Bezjak (11 Misc 3d 424
      [Crim Ct, NY County 2006]). In that case, Judge Harris stated:
      "Improbable though it may be, under the City's permit scheme as written, a
      person promenading, or two persons racing, are conceivably required to
      obtain a permit from the City of New York. Similarly, a funeral procession,
      two or three cars displaying political posters traveling one behind the
      other, caravan style, or a small group of friends biking together could run
      afoul of the law"
      (id. at 433). Although Judge Harris expressed a concern that his examples
      "may seem to strain a common sense application of the permit scheme," his
      examples were not far-fetched but rather were prescient, since Ms. Erickson
      appears to have been part of "a small group of friends biking together."
      Therefore, I join Judge Harris in finding that AC § 10.110 is
      constitutionally overbroad because it can be applied to small groups.

      In People v Namer, Judge Jackson found the Parading Law constitutional in
      part because it did not "contain any ambiguous terminology which could be
      applicable to small innocuous groups" and provided "sufficient protection
      against small groups of pedestrians or cyclists being targeted" (People v
      Namer, 11 Misc 3d at 414-15). In reaching this result, Judge Jackson noted
      that the Police Department Rules define a demonstration as "a group activity
      including, but not limited to, a meeting, assembly, protest, rally or vigil,
      moving or otherwise, which involves the expression of views or grievances,
      involving more than 20 people" (Rules of City of NY Police Department, [38
      RCNY] § 19-02(d)]). Although the word "demonstration" does not appear in AC
      § 10.110 , Judge Jackson concluded that the words "demonstration" and
      "parade" are synonymous, and then grafted the numerical limitation on
      "demonstrations" found in the Rules onto the parades and processions for
      which a permit is required under the Administrative Code. I reject this
      conclusion for two reasons. First, if the drafters of the Rules had
      intended to defined a parade as a demonstration, they could have easily done
      so. Instead, they provided different definitions for "parade or procession"
      and "demonstration" (see City of New York v Times' Up, Inc., 11 Misc 3d
      1052[A] at 10; People v Bezjak, 11 Misc 3d at 432, n 4). Second, the
      decision by the police to arrest defendant Erickson, and the decision by the
      People to prosecute her, for violating AC § 10.110 by bicycling through the
      Theatre District with three other people demonstrates that the People have
      not consistently adhered to their representation that permits are required
      only for groups of 20 or more (see also Bezjak, 11 Misc 3d at 433).

      Therefore, I find that the Parading Law, as written, provides no protection
      against its application to small, innocuous groups. Accordingly, I find
      that it is not narrowly tailored, which would require a finding that it is
      unconstitutional.

      b. AC § 10-110 IMPROPERLY APPLIES STRICT LIABILITY

      Under AC § 10.110, any person who participates in a permitless parade,
      procession or race may be arrested, and, if convicted, fined $25.00 or
      imprisoned up to10 days or both. Thus, the Parading Law imposes strict
      liability on all participants, regardless of whether they knew that the
      event lacked a permit (PL § 15.10). Although New York law generally
      presumes that criminal statutes require proof of a culpable mental state (PL
      § 15.15), the People argue that the Parading Law does not require a culpable
      mental state. Rather, they argue that an information is sufficient to
      allege a violation of the Parading Law if it shows that the defendant
      engaged in an event which required a permit under AC § 10.110, that the
      event took place on a public street, and that there was no permit (see,
      e.g. Perry Aff 3-4). Therefore, the Parading Law would, for example,
      criminalize the conduct equally of the organizer of a parade who chose not
      to seek a permit, and the individual who joined a parade at the last minute,
      mistakenly believing that the event had a permit. Indeed, an individual
      would be criminally liable under the Parading Law even if he had been
      incorrectly informed by an event organizer that the event had a permit,
      since mistake of fact is not a defense to a criminal statute that imposes
      strict liability (PL § 15.20).

      Statutes creating strict liability are disfavored in the criminal law
      (Donnino, Practice Commentary, McKinney's Cons. Law of NY, Book 39, Art.
      15; American-Arab Anti-Discrimination Committee v City of Dearborn, 418 F3d
      at 610). They are found most commonly in regulatory schemes, such as those
      that regulate motor vehicles, commercial goods and food distribution, and
      in other statutes that are designed to protect public health and safety
      (Smith v California, 361 US 147 [1960]; see, e.g. VTL § 509[a] [driving
      without a license]; VTL § 1192[2] [driving while intoxicated]; PL § 270.00
      [unlawfully dealing with fireworks]; ABCL § 64-b(1) [unlicensed sale of
      alcohol]). However, strict liability statutes that discourage the exercise
      of free speech are unconstitutional (American-Arab Anti-Discrimination
      Committee v City of Dearborn, 418 F3d at 611; Smith v California, 361 US
      at 155 [1960]; cf. New York v Ferber, 458 US 747, 765 [1982]; Ginsberg v New
      York, 390 US 629, 643 [1968][approves statute which prohibits only sale of
      obscene materials to minors made "knowingly"]).

      As an initial matter, the fact that AC § 10.110 is a violation rather than a
      crime does not foreclose consideration of this issue (cf. People v Namer, 11
      Misc 3d at 415). Violation of AC § 10.110 can still lead to imprisonment of
      up to10 days and a fine of $25 or both. In any event, what matters is not
      the technical categorization of the offense, but whether its enforcement
      chills free speech (see Video Software Dealers Ass'n v Webster, 968 F2d
      684, 690 [8th Cir. 1992]). Therefore, I turn to consider that issue.

      In Smith v California, the Supreme Court invalidated a statute
      which imposed strict criminal liability on a bookseller for selling obscene
      material, holding:

      "There is no specific constitutional inhibition against making the
      distributors of food the strictest censors of their merchandise, but the
      constitutional guarantees of the freedom of speech and of the press stand in
      the way of imposing a similar requirement on the bookseller. By dispensing
      with any requirement of knowledge of the contents of the book on the part of
      the seller, the ordinance tends to impose a severe limitation on the
      public's access to constitutionally protected matter. For if the bookseller
      is criminally liable without knowledge of the contents, and the ordinance
      fulfills its purpose, he will tend to restrict the books he sells to those
      he has inspected; and thus the State will have imposed a restriction upon
      the distribution of constitutionally protected as well as obscene
      literature."

      (Smith v California, 361 US at 152-153 [footnote omitted]). Similarly, in
      American-Arab Anti-Discrimination Committee, the Sixth Circuit invalidated
      the city of Dearborn's parade permit ordinance in part on the grounds that
      its strict liability regime would chill the exercise of First Amendment
      rights of an individual who might want to join a parade or march. The Court
      explained:

      "There is scarcely a more powerful form of expression than the political
      march. Unlike stationary demonstrations or other forms of pure speech, the
      political march is capable of reaching and mobilizing the larger community
      of citizens. It is intended to provoke emotive and spontaneous action, and
      this is where its virtue lies. As it progresses, it may stir the sentiments
      and sympathies of those it passes, causing fellow citizens to join in the
      procession as a statement of solidarity. Automatically criminalizing
      participation in a permitless march destroys the spontaneity and enthusiasm
      which public demonstrations of this nature are meant to engender . . .

      "[T]he potential protestor would be well-advised to seek personal
      verification from a city official that the demonstration has been
      authorized, or run the risk of being thrown in jail. Requiring potential
      march participants to seek authorization from city officials before joining
      a public procession or risk being jailed is antithetical to our traditions,
      and constitutes a burden on free expression that is more than the First
      Amendment can bear."
      (American-Arab Anti-Discrimination Committee v City of Dearborn, 418 F3d at
      611-612; see also People v Bezjak, 11 Misc 3d at 434-35).


      The same analysis applies with equal force to AC § 10.110. A New Yorker -or
      even a mere visitor to our city - who sees a march and joins it
      spontaneously runs the risk of being sentenced to10 days in jail for
      violating the Parading Law, as does the casual cyclist who comes abreast of
      a group of cyclists and joins them. This risk would certainly chill the
      potential participant's willingness to join the march or the larger group.
      Therefore, the Parading Law's imposition of strict criminal liability would
      require a finding that AC §10.110 is unconstitutional, had I found that
      defendants were within its reach.

      The serious questions as to the constitutionality of AC §10.110 provide a
      further reason for interpreting the language of the Parading Law strictly
      and finding that the defendants do not come within its reach, so that I need
      not find AC § 10.110 unconstitutional. Accordingly, I find that defendants
      were not required to obtain a permit under the Parading Law.


      B. THE COMPLAINT DOES NOT ADEQUATELY ALLEGE THAT A PERMIT WAS NOT OBTAINED


      To establish that a permit had not been obtained, each complaint includes
      only a conclusory statement from the arresting officer that the defendant
      did not have a permit at that time. Clearly, the officer could not have
      made that statement without reviewing Police Department records. However,
      there is no allegation that the officers actually reviewed such records, nor
      is there any description of any records reviewed. In the absence of such
      allegations, the officers' statements are not evidentiary, as required by
      CPL 100.15(3). Rather, the statements are hearsay, and do not satisfy the
      standards of CPL 100 (People v Alejandro, 70 NY2d 133, 136 [1987]; People v
      Al-Ladkani, 169 Misc 2d 720, 724-725 [Crim Ct, NY County 1996]).
      Consequently, there are no non-hearsay allegations to support a finding that
      defendants did not have a permit.

      Therefore, I find that the complaints are facially insufficient to allege a
      violation of AC § 10.110.

      II. THE DISORDERLY CONDUCT CHARGES ARE FACIALLY SUFFICIENT ONLY AS TO
      DEFENDANT GIGUERE

      A person is guilty of disorderly conduct under PL § 240.20(5) "when, with
      intent to cause public inconvenience, annoyance or alarm, or recklessly
      creating a risk thereof: . . . 5. He obstructs vehicular or pedestrian
      traffic." The Penal Law does not define "obstructs vehicular or pedestrian
      traffic." In order to be guilty under this section, a defendant's conduct
      must cause "more than a temporary inconvenience" (People v Pearl, 66 Misc
      2d 502 [App Term, 1st Dept 1971], citing People v Carcel, 3 NY2d 327, 332
      [1957]; People v Nixon, 248 NY 182, 187-188 [1928], overruled on other
      grounds, People v Santos, 86 NY2d 869 [1995]). Rather, defendant's conduct
      must create a serious interference with vehicular or pedestrian traffic (see
      People v Pearl, 66 Misc 2d at 503; see also People v Bezjak, 11 Misc 3d at
      437).


      The conduct of obstructing vehicular or pedestrian traffic must be
      "reinforced by a culpable mental state to create a public disturbance"
      (People v Tichenor, 89 NY2d 769, 775 [1997]; see also People v Munafo, 50
      NY2d 327, 331 [1980]; People v Pritchard, 27 NY2d 246, 248 [1970]). The
      information must allege facts, either about the defendant's conduct or about
      the surrounding circumstances, to support an inference that defendant
      possessed the requisite intent or recklessness (see People v Leiner, NYLJ,
      Oct. 15, 1997, at 34, col 5 [App Term, 2d & 11th Jud Dists], lv denied 91
      NY2d 894 [1998]).

      In considering whether an information alleging disorderly conduct adequately
      alleges that defendant had the requisite intent or recklessness, a court
      should consider the following factors: "(1) the extent to which defendant's
      conduct annoyed others; (2) whether defendant persisted in the conduct after
      warnings by others or the police; (3) whether defendant's conduct created at
      least the risk that disorder might result; and (4) whether defendant's
      conduct occurred in a public place" (People v Maher, 137 Misc 2d 162, 168
      [Crim Ct, NY County 1987], affd, 142 Misc 2d 977 [App Term, 1st Dept 1989]
      app den, 74 NY2d 794 [1989]; see also People v Munafo, 50 NY2d at 331;
      People v Gonzalez-Muniz, 2001 NY Slip Op 40182 [U] [Crim Ct, NY County]).

      Bicycle riders generally enjoy all of the rights and are subject to all of
      the duties of car drivers on roadways, except to the extent that their
      conduct is governed by more specific rules or laws (Vehicle & Traffic Law §
      1231). The primary concern of the rules and regulations governing
      bicyclists is that bicyclists should not cause "undue interference with the
      flow of traffic" (Vehicle & Traffic Law § 1234), while vehicle drivers are
      required to exercise due care to avoid colliding with any bicyclist on the
      roadway (Vehicle & Traffic Law § 1146).

      The rules governing bicyclists recognize that bicycles are inherently much
      slower, more vulnerable, and take up less space than cars or motorcycles
      (see People v Bezjak, 11 Misc 3d at 437). For example, bicyclists are
      required not to ride more than two abreast (VTL § 1234[b]). There is,
      however, no criminal sanction for a bicycle rider who violates that rule
      (VTL § 1234[b]; see Carrieri, Practice Commentary, McKinney's Cons Laws of
      NY, Book 62A, VTL §1234, 2006 Pocket Park, at 143 [According to the DMV,
      failure to keep to the right is a moving violation, which does not result in
      a surcharge, points or a conviction that is placed on a license]). In
      contrast, Penal Law § 240.20(5) provides criminal sanctions for a person who
      obstructs traffic with the requisite intent. Thus, mere proof that an
      individual violated a bicycle rule is insufficient to establish disorderly
      conduct without a showing that the person intended "to create a public
      disturbance" (People v Tichenor, 89 NY2d at 775 [1997]).

      Defendants Barrett and Erickson

      The complaints allege only that defendants Barrett and Erickson were
      riding four abreast, with the result that "numerous vehicles" were unable to
      proceed in the right traffic lane, and were forced to switch lanes to avoid
      colliding with defendants. The complaints do not allege how many cars were
      allegedly forced to switch lanes or that any of them had difficulty doing so
      (cf. People v Munafo, 50 NY2d at 331). The complaints also do not allege
      the duration of defendants' conduct. At best, the complaints alleges a
      temporary inconvenience to an unspecified number of cars who were required
      to switch lanes, but whose movement was not otherwise impeded.


      The Court takes judicial notice that, in ordinary traffic, cars change lanes
      for a variety of reasons, including, for example, avoiding slower moving
      cars, moving away from buses and evading potholes. The complaints do not
      allege that a larger number of cars than usual changed lanes as a result of
      defendants' conduct, or that traffic in general was affected. Thus, there
      is no basis for inferring that defendants engaged in conduct that seriously
      interfered with traffic.

      This case is similar to People v Nixon and People v Carcel, although those
      cases involved pedestrian traffic and an earlier version of the disorderly
      conduct statute. For example, in Nixon, the Court found that the defendants
      were not guilty of disorderly conduct where their conduct caused some
      pedestrians to step into the roadway but the pedestrians were not otherwise
      prevented from proceeding (see also People v Pearl, 66 Misc 2d 502; US v
      Williams, 2004 US Dist LEXIS 10943 [SD NY 2004]). The complaints against
      defendant Erickson and Barrett do not allege any greater obstruction to the
      cars which changed lanes than to the pedestrians who had to step into the
      roadway as a result of defendant Nixon's conduct.

      In addition, the complaints against Erickson and Barrett do not set forth
      any facts from which it can be inferred that they intended to obstruct
      traffic. All that is alleged is that they were riding abreast with two
      other cyclists. There is no allegation that an officer asked them to ride
      single file and that they refused. There is no allegation that the drivers
      of the other cars were unable to proceed or yelled at them, or that their
      conduct snarled traffic (cf. People v Maher, 137 Misc 2d at 168). I also
      cannot infer from their failure to obtain a permit that they intended to
      create disorder since I found that they were not required to obtain a
      permit. Accordingly, I find that the facts alleged in the information do
      not establish that they had the requisite intent to create disorder.

      Accordingly, the People have failed to establish a prima facie case of
      disorderly conduct against defendants Erickson and Barrett under Penal Law
      § 240.20(5).

      Defendant Mazurkiewicz

      The complaint alleges that defendant Mazurkiewicz rode her bike side by
      side with at least fifty other riders at a slow speed, and as a result,
      vehicles had to drive at an extremely slow rate of speed. The complaint
      does not allege how many drivers were affected, how long they were affected,
      or whether defendant's conduct caused a traffic jam. While the complaint
      states that cars had to drive very slowly, there is no allegation that the
      cars were not able to proceed forward. The court takes judicial notice that
      traffic often moves slowly on Manhattan streets, for a variety of reasons.
      As a result, I do not find that the allegation that defendant
      Mazurkiewicz's conduct caused the cars to move slowly is sufficient to
      allege that her conduct obstructed traffic. Therefore, I find that the
      information does not state a sufficient basis to believe that defendant
      Mazurkiewicz obstructed vehicular traffic.

      Nor does the information set forth sufficient facts to believe that
      defendant Mazurkiewicz possessed the requisite intent. There is no
      allegation that she was given any warning, or that drivers were annoyed, or
      that there was a risk of disorder. Rather, at worst, her conduct caused
      cars to move slowly, which is certainly not an unusual occurrence in
      Manhattan.

      Therefore, I find that the complaint does not state a prima facie case of
      disorderly conduct as to defendant Mazurkiewicz.

      Defendant Giguere

      The complaint against defendant Giguere alleges that she rode her bicycle at
      a slow rate of speed through an intersection, while 50 other riders did the
      same, preventing vehicles and pedestrians from passing and moving forward in
      the street. Moreover, defendant Giguere and the other riders with her are
      alleged to have gone through a red light, which is a traffic infraction
      which has a real potential to cause public disorder under these
      circumstances. I find that the allegation that her conduct prevented
      vehicles and pedestrians from passing forward states a prima facie case that
      she obstructed traffic. Moreover, the allegation that she committed a
      traffic infraction by failing to obey a traffic signal provides a basis for
      inferring that she intended to cause public inconvenience, or recklessly
      created a risk of it. Accordingly, I decline to dismiss the disorderly
      conduct charge against defendant Giguere.

      III. DEFENDANT GIGUERE'S MOTION TO DISMISS IN THE INTERESTS OF JUSTICE IS
      DENIED

      In view of my dismissal of all charges except those against defendant
      Giguere, I need only address this motion as to her. In considering the
      statutory factors set out in CPL 170.40, I find that there is no compelling
      factor which convinces me that prosecution of defendant Giguere would
      constitute injustice. In particular, I find that defendant Giguere's
      alleged conduct of running a red light with a large group of cyclists could
      cause serious disorder and, contrary to the statements in defendant's
      motion, certainly provided an appropriate basis for the officer to arrest
      her. In view of the allegation that she violated a traffic control law
      which promotes public safety, a dismissal could have a negative impact on
      both public safety and the confidence of the public in the judicial system.
      Therefore, I am denying her motion to dismiss in the interests of justice.

      IV. REMAINING MOTIONS

      Defendant Giguere's motion to suppress physical evidence or, alternatively,
      for a Mapp/Dunaway hearing, is granted to the extent of ordering that such
      a hearing be held. Defendant Giguere's motion to preclude the People from
      introducing various types of evidence at trial, including any unnoticed
      statements and identification testimony and defendant's prior convictions or
      bad acts, is reserved for the trial court. Defendant Giguere retains all
      rights pursuant to CPL 255.20 (2).

      This constitutes the decision and order of the Court.


      Dated: September 11, 2006

      ______________________________
      Ellen Gesmer, Judge
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