The People, Respondent,v.Trevis D. Baker, Appellant. (Appeal No. 2)BriefN.Y.January 8, 2013 To Be Argued By: TIMOTHY S. DAVIS Assistant Public Defender Requested Time: 15 Minutes STATE OF NEW YORK * COURT OF APPEALS ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- TREVIS D. BAKER, Appellant. ___________________________________________________ REPLY BRIEF FOR APPELLANT APPEAL NO. 1, Indictment No. 0409/06 APPEAL NO. 2, Indictment No. 0368/06 TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: TIMOTHY S. DAVIS Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4213 Fax: (585) 753-4234 Brief Completed: July 23, 2012 TABLE OF CONTENTS TABLE OF AUTHORITIES -i-, -ii-, -iii- REPLY TO RESPONDENT’S POINT I: NOTWITHSTANDING THE RESPONDENT’S ARGUMENT TO THE CONTRARY, THE UNITED STATES SUPREME COURT HAS LONG HELD THAT UNLESS OFFENSIVE, INSULTING OR PROFANE LANGUAGE INCLUDES “FIGHTING WORDS,” IS IN SOME MANNER EROTIC, OR CONSTITUTES AN INCITEMENT TO AN IMMINENT ACT OF VIOLENCE, IT IS CONSTITUTIONALLY PROTECTED. 1 A. Introduction. 1 B. The Facts Upon Which the Respondent Relies are Incomplete, and as a Result Provide a Misleading Picture of What Transpired Between Mr. Baker and the Arresting Officer. 2 C. Contrary to the Contention of the Respondent, the Issue Herein is not one of Fact, but of Law: Whether Mr. Baker’s Speech was Constitutionally Protected, Such That his Arrest was Unlawful. 5 D. Though Instructive, This Court’s Analysis and Decision in People v Dietze Does not Resolve the Issues Presented Herein. 8 E. This Court did not Hold in People v Tichenor That Every Harsh or Offensive Utterance, Spoken With the Intent Only That Someone Else Hear it, is Proscribed by Penal Law § 240.20 (3). 13 F. Conclusion: The Respondent Posits a Theory of the First Amendment Beyond That Ever Countenanced by This or the United States Supreme Court. 16 REPLY TO RESPONDENT’S POINT II: IF MR. BAKER’S CONVICTION FOR CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IS REVERSED, SO MUST HIS CONVICTION FOR ASSAULT; OTHERWISE, HE WILL HAVE BEEN DEPRIVED OF THE BARAGIN HE NEGOTIATED BEFORE PLEADING GUILTY. 21 CONCLUSION 23 i TABLE OF AUTHORITIES` Federal Cases Bose Corp. v Consumers Union of US, Inc., 466 US 485 (1984) ..................................................................................................... 8 Brandenburg v Ohio, 395 US 444 (1969) ...................................................................................................15 Chaplinsky v New Hampshire, 315 US 568 (1942) ...............................................................................................9, 17 Cohen v California, 403 US 15 (1971) .......................................................................................... 2, 19, 20 Feiner v New York, 340 US 315 (1951) ............................................................................................ 15, 16 New York Times Co v Sullivan, 376 US 254 (1964) ..................................................................................................... 8 R.A.V. v City of St. Paul, 505 US 377 (1992) ...................................................................................................19 Street v New York, 394 US 576 (1969) ...................................................................................................19 Terminiello v City of Chicago, 337 US 1 (1949) ................................................................................................ 17, 18 Texas v Johnson, 491 US 397 (1989) ...................................................................................................15 US v Alvarez, ___ US ___, 132 S Ct 2537 (2012) ..........................................................................20 US v Stevens, ___ US ___, 130 S Ct 1577 (2010) ..........................................................................20 ii Virginia v Black, 538 US 343 (2003) ...................................................................................................19 State Cases People v Alexander, 37 NY2d 202 (1975) .................................................................................................. 7 People v Bakolas, 59 NY2d 51 (1983) ..................................................................................................10 People v Dietze, 75 NY2d 47 (1989) .............................................................................. 2, 8-10, 12, 13 People v Feiner, 300 NY 391 (1950) ........................................................................................... 14, 15 People v Fuggazzatto, 62 NY2d 862 (1984) ................................................................................................21 People v Furet, 12 NY3d 740 (2009) .................................................................................................. 5 People v Morales, 42 NY2d 129 (1977) .................................................................................................. 7 People v Most, 171 NY 423 (1902) ..................................................................................................17 People v Munafo, 50 NY2d 326 (1980) ........................................................................................ 12, 18 People v Oden, 36 NY2d 382 (1975) .................................................................................................. 5 People v Pritchard, 27 NY2d 246 (1970) ......................................................................................... 12, 18 iii People v Rowland, 8 NY3d 342 (2007) ..................................................................................................21 People v Tichenor, 89 NY2d 769 (1997) ...................................................................................... 2, 13-16 People v Weaver, 16 NY3d 123 (2011) ................................................................................................18 Shulman v Hunderfund, 12 NY3d 143 (2009) .................................................................................................. 8 State Statutes Former Penal Law § 240.25 (2) ...........................................................................9, 10 Penal Law § 240.20 ................................................................................ 1, 2, 8, 10-13 Model Codes Model Penal Code § 250.2 ...................................................................................8, 10 Other Legislative Authorities Model Penal Code and Commentaries § 250.2 (1980) ..................................... 10, 11 Staff Notes of the Commission on Revision of the Penal Law, Proposed New York Penal Law, McKinney’s Spec Pamph (1964) .......................12 William C. Donnino, Practice Commentary, McKinney’s Cons Laws NY, Penal Law § 240.20, (2008) ........................................................... 11, 12 Other References Brief for Respondent in People v Tichenor, 89 NY2d 769 (1997) .........................14 1 REPLY TO RESPONDENT’S POINT I: NOTWITHSTANDING THE RESPONDENT’S ARGUMENT TO THE CONTRARY, THE UNITED STATES SUPREME COURT HAS LONG HELD THAT UNLESS OFFENSIVE, INSULTING OR PROFANE LANGUAGE INCLUDES “FIGHTING WORDS,” IS IN SOME MANNER EROTIC, OR CONSTITUTES AN INCITEMENT TO AN IMMINENT ACT OF VIOLENCE, IT IS CONSTITUTIONALLY PROTECTED. A. Introduction. This court has never specifically defined the terms “abusive” or “obscene” within Penal Law § 240.20 (3). Based upon the legislative history of the statute, and the history of the Model Penal Code’s Disorderly Conduct provision upon which the New York statute is based, the Appellant argued within his main brief that the intent of the Legislature was to limit “abusive language” to that which includes “fighting words,” and “obscene language” to that which is in some fashion erotic (see Brief for Appellant, Appeal No 1, at 15-47). The Appellant also argued, based upon the last seventy-five years of United States Supreme Court First Amendment jurisprudence, that public speech may not constitutionally be proscribed unless it constitutes “fighting words,” erotica, or an incitement to violence (id. at 48-66). In response, the Respondent does not argue that Mr. Baker’s speech constituted “fighting words,” was somehow erotic, or was uttered in an attempt to incite those within earshot to commit some unlawful act. Respondent argues that under New York’s Disorderly Conduct provision, speech is unlawful if it is merely 2 offensive, profane, or insulting, and draws a small crowd of onlookers. (See Brief for Respondent at 8-13.) In so arguing, the prosecutor simply ignores the many, many United States Supreme Court decisions at odds with this theory (see e.g. Cohen v California, 403 US 15 [1971]), and claims that this Court’s decisions in People v Dietze (75 NY2d 47 [1989]), and People v Tichenor (89 NY2d 769 [1997]), render the “fighting words” and “obscenity” analysis irrelevant in the context of a Disorderly Conduct charge (Brief for Respondent at 9-11). But in so arguing, the Respondent fundamentally misinterprets both cases, ignores the legislative history of Penal Law § 240.20 (3), and suggests this Court adopt an interpretation that would render the provision unconstitutional. B. The Facts Upon Which the Respondent Relies are Incomplete, and as a Result Provide a Misleading Picture of What Transpired Between Mr. Baker and the Arresting Officer. As there is little dispute as to what occurred between Mr. Baker and Officer Johnson, the facts as related within Respondent’s brief are, for the most part, supported by the record. But there is both a misstatement and omission of two key facts that must not stand uncorrected. First, although Officer Johnson ran the license plate of the Cadillac parked in the driveway adjacent to Mr. Baker’s girlfriend’s house, and determined the plate was actually registered to a Toyota, he did not, as the Respondent claims, ever testify he wrote her or anyone else a ticket for this infraction (R 84-121; Brief for 3 Respondent at 8). Second, and more importantly, the Respondent omits any mention of the reason Mr. Baker uttered in public the language Officer Johnson believed was “abusive or obscene.” As a result, the Respondent is able to argue that Mr. Baker’s sole purpose was to create some sort of public spectacle to impress his girlfriend and the other onlookers. With regard to Mr. Baker’s yelling to Officer Johnson from the middle of the street, “Fuck you, you guys are just fucking me,” and then, “Fuck you, you guys are just harassing me,” the Respondent writes as follows: “The evidence as a whole made it ‘reasonably likely’ that defendant used this abusive and obscene language in a public performance of sorts for the video camera of his already- outraged girlfriend and the neighborhood onlookers.” (Brief for Respondent at 8.) But the Respondent is only able to argue that it is “reasonably likely” this was Mr. Baker’s apparent intent because the Respondent ignores that Officer Johnson asked Mr. Baker, once he reached the middle of the street, to repeat what he had said in private, at the police car (R 121). Officer Johnson testified that after he approached the lady with the video camera to ask about the car parked in her driveway, Mr. Baker, whom he believed was her boyfriend, approached his car from the passenger side, and asked what was going on (R 85-98, 112). Officer Johnson admitted he responded somewhat rudely to Mr. Baker, and did not give him a straight answer (R 116). Thereafter, Mr. 4 Baker, who had not made any threatening or otherwise aggressive moves toward Johnson, stood up and said, “Fuck you” (R 92-94, 106-107, 116). To this point, as evidenced by both Officer Johnson’s testimony and the videotape, the conversation between he and Mr. Baker was an entirely private matter, as no one could hear what they were saying to each other (see People’s Hearing Exhibit 1). But after Mr. Baker began to walk backwards across the street, Officer Johnson called out to him, “What did you say?” It was only then that Mr. Baker repeated the essence of what he said earlier in a voice loud enough for both Officer Johnson and the onlookers to hear. (R 106-107 [emphasis added].) Thus, when all the facts of what transpired are considered, the Respondent’s claim that Mr. Baker was only engaged in some “public performance” with the intent to further excite the onlookers is, at best, questionable. For the totality of the facts suggests something quite different. That Mr. Baker was engaged in a private discussion with Officer Johnson, the content of which became known only because the officer goaded Mr. Baker into repeating himself, knowing that once he did so, and other people overheard what he said, the officer would arrest him for Disorderly Conduct. 5 C. Contrary to the Contention of the Respondent, the Issue Herein is not one of Fact, but of Law: Whether Mr. Baker’s Speech was Constitutionally Protected, Such That his Arrest was Unlawful. The Respondent argues that the suppression court’s probable cause determination presents a mixed question of law and fact. Thus, as the testimony of the arresting officer and the video recording of the incident provide record support for the finding of probable cause, this Court must simply affirm without conducting any further inquiry (see People v Furet, 12 NY3d 740 [2009]; Brief for Respondent at 8). But in so arguing, the Respondent ignores that when the facts are not in dispute, whether the facts and circumstances found to exist “amount to probable cause is a question of law” (People v Oden, 36 NY2d 382, 384 [1975] [citations omitted]). As Officer Johnson admitted he asked Mr. Baker to say the words for which he then arrested him, and the court accepted into evidence the video recording of the incident, there is little dispute as to what occurred before Mr. Baker was arrested (R 106-107; People’s Hearing Exhibit 1). Officer Johnson and his partner were investigating possible drug sales on Durnan Street. After speaking with a number of potential suspects or witnesses, Johnson saw a woman standing across the street, with what appeared to be a video camera pointed in his direction. She was doing nothing unlawful, but he wanted to know she was, because she appeared to be recording his activities. (R 85-90.) 6 Rather than just approach and ask the woman her name, Johnson ran the license plate of a Cadillac parked in the driveway next to her house. When a DMV check revealed the plate was registered to a Toyota Corolla, Johnson walked over to the woman, and asked her to whom the car belonged. When the woman replied it was her grandfather’s, Johnson returned to his car. (R 85-91, 112.) A small crowd had gathered around the woman, and was watching what was going on. As the officer was just sitting in his car, Trevis Baker, the woman’s boyfriend, walked across the street to the passenger side window. Mr. Baker spoke with the officer without raising his voice, or making any threatening gestures. He asked the officer why he was running the plate of the Cadillac. But instead of just giving Mr. Baker a straight answer, Johnson responded by saying either he could do whatever, or that he could run whatever plate he wanted to. (R 91-92, 94, 97-98, 116.) At the conclusion of their conversation, Mr. Baker stood up and said, in a normal tone of voice, “Fuck you. This is harassment.” Then, without asking anything else or making any threatening or other physical gestures, Mr. Baker began to walk backwards across the street toward his girlfriend. But as Mr. Baker crossed the middle of the street, and was about ten or fifteen feet away, Johnson called out to him, “What did you say?” Mr. Baker then repeated what he had said 7 earlier: “Fuck you. This is harassment.” And then, as he turned around, he muttered, “motherfucker.” (R 92-94, 106-107, 116; People’s Hearing Exhibit 1.) As there is no factual dispute as to the encounter between Mr. Baker and Officer Johnson, and the record does not support any inference that the officer had probable cause to arrest, the issue herein is a question of law that is properly before this Court: whether Mr. Baker’s language was constitutionally protected, and therefore could not serve as a valid predicate for his arrest (People v Morales, 42 NY2d 129, 134 [1977]; People v Alexander, 37 NY2d 202, 204 [1975]). But even if there were a factual dispute, such as an issue as to what Mr. Baker actually stated, the most likely inference to be drawn from his statements, the number of people attracted, or whether the onlookers were likely to commit some unlawful act, this would not foreclose review by this Court. For as both this Court and the United States Supreme Court have held, in cases involving the First Amendment, an appellate court has an obligation to independently examine the entirety of the record to be certain the lower court ruling has not improperly curtailed a defendant’s free speech rights. “In cases where [the] line [between protected and unprotected speech] must be drawn, the rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect. We must make an independent examination of the whole record, so as to assure ourselves that the 8 judgment does not constitute a forbidden intrusion on the field of free expression.” (Shulman v Hunderfund, 12 NY3d 143, 147-48 [2009], quoting New York Times Co v Sullivan, 376 US. 254, 285 [1964]; see also Bose Corp. v Consumers Union of US, Inc., 466 US 485, 499 [1984].) D. Though Instructive, This Court’s Analysis and Decision in People v Dietze Does not Resolve the Issues Presented Herein. The Respondent argues that “abusive language” under Penal Law § 240.20 (3) cannot be defined to mean “fighting words” because in People v Dietze (75 NY2d 47 [1989]), this Court rejected a similar argument with regard to the same term within the Harassment statute (Brief for Respondent at 10). But in so arguing, the Respondent ignores that Penal Law § 240.20 is based upon the Model Penal Code Disorderly Conduct provision, the drafters of which intended “abusive language” as used therein to mean “fighting words” (see Brief for Appellant, Appeal No 1, at 20-31). The prosecutor also ignores that the courts of every other State with a Disorderly Conduct provision based upon Model Penal Code § 250.2 have interpreted their own statutes accordingly (see Brief for Appellant, Appeal No 1, at 40-47). And lastly, the Respondent ignores that this Court declined to render the Harassment statute constitutional by defining “abusive language” as “fighting words” because this definition was incompatible with the rest of the statute – a problem not present with Penal Law § 240.20 (3). 9 The defendant in People v Dietze was charged with Harassment in the Second Degree under former Penal Law § 240.25 (2) for uttering “abusive” language with the “intent to harass, annoy, or alarm another person.” Convicted after trial, the defendant appealed, arguing that the charge was “unconstitutionally overbroad because its prohibitions extend[ed] to a great deal of protected speech as well as to unprotected obscenities and ‘fighting words’.” (75 NY2d at 51.) In determining whether the former subdivision of Harassment in the Second Degree infringed upon constitutionally protected speech, this Court noted that speech does not lose its protection under the First Amendment just because it is “vulgar, derisive, [or] provocative.” To the contrary, speech may only be proscribed if “sharply limited to words, which, by their utterance alone, inflict injury or tend to evoke immediate violence or other breach of the peace.” (Dietze, 75 NY2d at 51-52 [internal citations omitted].) Thus, this Court held that the provision at issue would be constitutional only if the term “abusive language” was limited to “fighting words” (Dietze, 75 NY2d at 52, citing Chaplinsky v New Hampshire, 315 US 568 [1942]). The problem was that there was no indication within the statute that any term used therein was to be accorded anything but its commonly understood meaning. Thus, as this Court determined that “abusive” was commonly understood to mean “coarse,” “insulting,” or “harsh,” the provision prohibited 10 speech that was merely insulting or annoying, not just that described as “fighting words.” This Court acknowledged that if possible the provision should be saved by interpreting its language in a manner consistent “with constitutional requirements.” But with regard to the Harassment charge, the saving construction was not reasonably implicit in the language of the statute, as it was not possible to reconcile a requirement that the proscribed statements constitute “fighting words,” with that portion of the statute that required the speaker to act with the intent to merely harass, annoy or alarm another person. (Dietze, 75 NY2d at 52-53.) As with former Penal Law § 240.25 (2), there is no language within the Disorderly Conduct provision attributing a special meaning to the term “abusive.” But this Court has previously noted that Penal Law § 240.20 “is largely based upon section 250.2 of the American Law Institute’s Model Penal Code” (People v Bakolas, 59 NY2d 51 [1983]). And the third subdivision of the Penal Law provision is almost identical to the second of section 250.2, in that they both proscribe “abusive language.” Although the reports of the Commission on the Revision of the Penal Law are silent as to the specific meaning to be attributed “abusive” as that term appears within Penal Law § 240.20 (3), the Model Penal Code Commentaries most certainly are not. To the contrary, the Commentaries specifically state that the term “abusive language,” as used within Model Penal 11 Code § 250.2, is limited in scope to “fighting words.” (See Brief for Appellant, Appeal No 1, at 20-31.) The second major difference the Respondent ignores between the Harassment charge at issue in Dietze and the Disorderly Conduct charge at issue herein, is that Penal Law § 240.20, when read in its entirety, supports the contention that “abusive language” means something more than that which is just merely offensive or insulting. In Dietze, this Court refused to limit the term “abusive language” within the Harassment charge to “fighting words” because there was no way to reconcile such an interpretation with that part of the statute requiring an intent to merely “harass [or] annoy” another person (75 NY2d at 52). But the Disorderly Conduct statute presents no such problem, as it proscribes “abusive language” when uttered with either the “intent to cause public inconvenience, annoyance or alarm,” or in reckless disregard of “creating a risk thereof” (Penal Law § 240.20 [3]). The Notes of the Commission on the Revision of the Penal Law are silent as to the meaning of the term “abusive,” but that is not the case with regard to the phrase “public inconvenience, annoyance or alarm.” The Staff Notes of the Commission state that this language within Penal Law § 240.20 was intended “to proscribe only that type of conduct which has a real tendency to provoke public disorder” (William C. Donnino, Practice Commentary, McKinney’s Cons Laws 12 NY, Penal Law § 240.20, 2008, quoting Staff Notes of the Commission on the Revision of the Penal Law, proposed New York Penal Law, McKinney’s Spec Pamph 1964, at 388). And this Court has previously noted that the Disorderly Conduct statute was crafted not to proscribe each and every minor irritance, as it “is limited to that type of conduct which involves a genuine intent or tendency to provoke a ‘breach of the peace’” (People v Pritchard (27 NY2d 246, 248 [1970]; see also People v Munafo, 50 NY2d 326, 331 [1980]). Because the Disorderly Conduct provision does not proscribe every mere annoyance, but was crafted to protect the public from severe acts of disturbance, it is evident the Legislature intended “abusive language” to mean more than just those words that another may find insulting or possibly offensive. Thus, even if this Court were to find that the Legislature did not draft Penal Law § 240.20 (3) with the intent to limit “abusive language” to just “fighting words,” the statute may be brought into compliance with the Constitution by interpreting “abusive language” in this very manner, as, unlike in People v Dietze, when the Disorderly Conduct statute is read in its entirety, the saving construction is “reasonably implicit.” 13 E. This Court did not Hold in People v Tichenor That Every Harsh or Offensive Utterance, Spoken With the Intent Only That Someone Else Hear it, is Proscribed by Penal Law § 240.20 (3). In addition to arguing that this Court in People v Dietze forever put to rest the contention that the term “abusive language” can be limited to “fighting words,” the Respondent argues that because the State has a responsibility to preserve public order, it may constitutionally proscribe the use of profane, harsh or insulting words when uttered with the intent to cause a public spectacle. The Respondent supports this contention by citing this Court’s decision in People v Tichenor (89 NY2d 769 [1997]), addressing the constitutionality of Penal Law § 240.20 (3). (Brief for Respondent at 9-11.) But Respondent ignores that in Tichenor, this Court never specifically defined either “obscene” or “abusive,” and affirmed the defendant’s conviction because in the course of using “fighting words,” he was the sole cause of a melee inside a bar during which the arresting officer was lucky to escape without injury. Noel Tichenor’s unruly and aggressive behavior could not have been more different from that of Mr. Baker. Standing on the sidewalk outside a bar in Saratoga Springs, Tichenor saw a police officer approach on foot. As he walked by, Tichenor called the officer a “Fucking Pig,” and spat on the ground toward his feet. The officer stopped and turned toward Tichenor, who then placed both hands on the officer’s shoulders, stated, “Don’t fuck with me,” and then shoved the 14 officer with enough force to send him reeling backwards. (Brief for Respondent in People v Tichenor, 89 NY2d 769 [1997], at 1-3.) At this point the officer decided to arrest Tichenor, but as he tried to place the handcuffs on his wrists, a large group of people appeared at the doorway, spewing profanity interspersed with shouts of, “Leave him alone.” The officer radioed for backup, but Tichenor escaped his grasp and ran into the bar. After giving chase, the officer cornered Tichenor, who responded by assuming a fighting posture. As the officer tried to take him into custody a second time, they began to struggle and fell to the ground. When backup finally arrived, there were tables and chairs strewn all about, and three people, including Tichenor, were on top of the arresting officer. (Id.) There can be no question that Tichenor addressed the officer with “fighting words,” for no matter the degree or extent of a police officer’s training, it is difficult to imagine anyone exercising restraint upon being spat at and physically manhandled, while being called a “Fucking pig.” But rather than resolve the case solely on this ground, the Tichenor Court noted that in addition to “fighting words,” the First Amendment does not protect speech uttered with the intent to incite a hostile crowd to acts of violence (89 NY2d at 774). In support of this proposition, this Court cited People v Feiner, a former Penal Code prosecution where the speaker stood on an upturned box, and ignoring several police officers’ 15 warnings to desist, addressed a throng of excited people, urging the African- Americans within the crowd to rise up and attack those who were not (300 NY 391 [1950]; see Brief for Appellant, Appeal No 1, at 28-29). Since affirming this Court’s decision in Feiner v New York (340 US 315 [1951]), the United States Supreme Court has repeatedly held that such speech is not constitutionally protected. But the Court has also made clear that before the police may arrest a speaker who has advocated the commission of a violent or otherwise unlawful act, the words used must be both “directed to inciting or producing imminent lawless action,” and “likely to incite or produce” such a result (Brandenburg v Ohio, 395 US 444, 447 [1969]; Texas v Johnson, 491 US 397, 409 [1989]). There is no question Noel Tichenor addressed the officer in his case with “fighting words.” Thus, as this Court in its decision never specifically defined the terms “abusive” or “obscene,” it is unclear whether People v Tichenor may be read to define “abusive” as both “fighting words” and those directed to inciting or producing imminent lawless action. But even if this is the import of the decision, this does not support the Respondent’s theory that Tichenor stands for the proposition that the terms “abusive” and “obscene” have no specific meaning, as all that is relevant for a Disorderly Conduct prosecution is that the speaker utter 16 words with the intent that his or her speech will create a public spectacle, and draw the attention of others. To support this contention, the Respondent quotes the following from People v Tichenor: the Disorderly Conduct provision “is directed at words and utterances coupled with an intent to create a risk of public disorder, which the State has the authority and responsibility to prohibit prevent and punish” (89 NY2d at 775; Brief for Respondent at 9). But in arguing that this one sentence supports its position, the Respondent completely ignores both the facts of the Tichenor case and the context for this Court’s holding. The Respondent also omits any reference to Feiner v New York, even though the Tichenor decision cites Feiner to support the legal proposition upon which the Respondent now relies. F. Conclusion: The Respondent Posits a Theory of the First Amendment Beyond That Ever Countenanced by This or the United States Supreme Court. The Respondent does not argue that Mr. Baker’s speech included “fighting words,” an incitement for others to commit some unlawful act, or language that was in some fashion erotic, and therefore “obscene.” Respondent argues simply that Mr. Baker used offensive language to address an officer with whom he had a dispute, with the intent of drawing the attention of onlookers who had congregated to watch what was happening. (Brief for Respondent at 9-13.) But in arguing that this conduct constituted Disorderly Conduct, the Respondent ignores that this 17 Court, long before the Supreme Court decided Chaplinsky v New Hampshire (315 US 568 [1942]) or Terminiello v City of Chicago (337 US 1 [1949]), held that public speech could only be prosecuted as a breach of the peace if it included an incitement to violence. “A breach of the peace is an offense well known to the common law. It is a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community. Barb. Cr. Law, 219; Archb. Cr. Prac. 91; Bish. Cr. Law, § 533; Clark & M. Crimes, 983; McLean, Cr. Law, § 1012. It may be committed by written words, as a libel has been indictable for time out of mind because it tends to produce violence, or even by spoken words, provided they tend to provoke immediate violence.” (People v Most, 171 NY 423, 429 [1902].) The Respondent asks this Court now to interpret the Disorderly Conduct statute and the First Amendment to permit the State to punish offensive speech uttered with the intent only that passersby stop to hear it. But the Respondent’s theory would allow prosecution for behavior and consequences far in excess of what was intended with the enactment of the present-day Disorderly Conduct provision, and for a class of speech the Supreme Court has long held is protected. As noted within Reply Point I (D), supra, the Disorderly Conduct statute was designed to deter serious breaches of the peace. And this Court has never sustained a conviction for Disorderly Conduct when a peaceful crowd has gathered, where there has been no incitement to violence, and there has been no 18 interference with pedestrian or vehicular traffic (see People v Munafo, 50 NY2d 326 [1980]; People v Pritchard, 27 NY2d 246 [1970]); or there has been no reasonable likelihood any of these actual problems will occur (see People v Weaver, 16 NY3d 123 [2011]). Moreover, in arguing that speech that attracts the attention of others may be proscribed, the Respondent exhibits a fundamental misunderstanding of the First Amendment (see Terminiello, 337 US at 1). For freedom of speech would mean little if the moment more than one person stopped to listen, the speaker could be arrested. If this were the case, religious crusaders, antiabortion protesters, peace activists, and environmental awareness advocates, who all speak in public hoping to attract converts, would risk arrest, simply for espousing their beliefs in public. Under the Respondent’s view of the First Amendment, only speech of no interest to the public would be permitted. Although the Respondent labels the group of people gathered to watch the encounter between the police and Mr. Baker a “potential public problem” (Brief for Respondent at 8) there is nothing within the record below that this was a concern of Officer Johnson, who testified it was not at all unusual for this to happen (R 119). Mr. Baker did not say anything that could reasonably be construed as an incitement for the onlookers to riot, and there was nothing about the behavior of the onlookers to suggest they were in any manner so disposed (see People’s Hearing Exhibit 1). Thus, the Respondent posits a theory of Disorderly 19 Conduct that would allow the police to arrest a speaker on the off-chance an on- looker may violate the law. But this theory was specifically rejected by the Supreme Court in Cohen v California: “At most it reflects an ‘undifferentiated fear or apprehension of disturbance (which) is not enough to overcome the right to freedom of expression.’ We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. The argument amounts to little more than the self-defeating proposition that to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves.” (403 US 15, 23 [1971] [internal citations omitted].) Just as the Respondent’s theory would allow for prosecution of a defendant for creating a “disturbance” of a type not anticipated by the Legislature, its theory would allow prosecution for the mere utterance of offensive words, a class of speech the Supreme Court has repeatedly stated is protected by the First Amendment (see e.g. Virginia v Black, 538 US 343 [2003]; R.A.V. v City of St. Paul, 505 US 377 [1992]). In 1969, the Supreme Court held in Street v New York (394 US 576, 592), that “under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” And two years later, in Cohen v California, the Court reaffirmed 20 this principle, explaining that offensive speech is beyond the reach of the State, as government officials are unable to make principled distinctions in this area, and because “the Constitution leaves matters of taste and style . . . largely to the individual” (403 US at 25). As the Respondent has fashioned a rationale to justify the arrest of Mr. Baker based upon a theory that offensive, harsh or insulting words are unprotected speech, they are unable to cite one United States Supreme Court case in support thereof (see Brief for Respondent 8-13). For the Court has, since its decision in Cohen, never held the State may attempt to eliminate this speech from public discourse. And when discussing the categories of speech that are unprotected, the United States Supreme Court has been steadfast that in the context of an alleged breach of the peace, only those utterances that are erotic, include “fighting words,” or constitute an incitement to violence may be proscribed. (See US v Alvarez, ___ US ___, 132 S Ct 2537, 2544 [2012]; US v Stevens, ___ US ___, 130 S Ct 1577, 1584 [2010].) 21 REPLY TO RESPONDENT’S POINT II: IF MR. BAKER’S CONVICTION FOR CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IS REVERSED, SO MUST HIS CONVICTION FOR ASSAULT; OTHERWISE, HE WILL HAVE BEEN DEPRIVED OF THE BARAGIN HE NEGOTIATED BEFORE PLEADING GUILTY. The Respondent argues that regardless of this Court’s decision with regard to Mr. Baker’s drug case, his conviction on the assault charge must stand, because he was not induced to plead guilty to the assault based upon the promise of concurrent time. In support of this argument, the Respondent claims the assault conviction must stand because unlike in People v Fuggazzatto (62 NY2d 862 [1984]), Mr. Baker pled guilty to both the assault and drug charges on the same day. (Brief for Respondent at 14.) But the timing of each plea is irrelevant. It matters not whether the two convictions occur one minute, one month, or one year apart. The issue is whether the vacatur or reduction of the one sentence “nullifie[s] a benefit that was expressly promised and was a material inducement to the guilty plea” (People v Rowland, 8 NY3d 342, 345 [2007]). In this case, as conceded by the Respondent, there is no question Mr. Baker was promised with regard to the assault charge a concurrent sentence with the drug conviction (Brief for Respondent at 14). There can also be little question this was a “material inducement” to his guilty plea. Mr. Baker knew that as the court had ruled the drugs admissible, he had no defense with regard to those charges (R 8-9). 22 As a result, a trial would be pointless, because he would be convicted, and based upon his prior record, would be sentenced to state prison (See Brief for Appellant, Appeal No 2, at 8-9). Thus, there was little reason to go to trial on the assault charge, even though he believed he was not guilty on that matter (R 158-159), as long as he was able to secure a concurrent sentence, and a promise that he could appeal the court’s suppression ruling with regard to the drug charge. Had Mr. Baker not believed he would have been able to vacate his assault conviction if the suppression ruling was reversed, the right to appeal the drug case would have been meaningless, because even if he was successful on appeal, he would serve no less time in prison. 23 CONCLUSION WHEREFORE, MR. BAKER’S JUDGMENT OF CONVICTION UNDER INDICTMENT 409/2006 SHOULD BE REVERSED, HIS GUILTY PLEA VACATED, AND THE MOTION TO SUPPRESS GRANTED. FURTHER, HIS JUDGMENT OF CONVICTION FOR ASSAULT IN THE SECOND DEGREE UNDER INDICTMENT 368/2006 MUST ALSO BE REVERSED, AND HIS PLEA OF GUILTY VACATED. Dated: July 23, 2012 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: TIMOTHY S. DAVIS Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4213