Opinion
December 5, 1957
Appeal from the Court of Special Sessions, Erie County, DOUGLAS W. KUHN, J.
John F. Dwyer, District Attorney, for respondent.
Kevin Kennedy for David Jerome, appellant.
John E. Leach for Stanley J. Bailey, Jr., appellant.
The defendants, after trial, were convicted on August 29, 1957 by the Police Justice of the Village of East Aurora, Erie County, New York, of disorderly conduct in violation of chapter 14 (§ 2, subds. [b], [d]) of the ordinances of said village, and now appeal to this court claiming the errors specified in their affidavits on appeal.
A transcript of the testimony included in the return discloses the following credible evidence as facts:
That on or about August 17, 1957 at or near midnight it was reported to the village police that there was a disturbance at or near 377 Main Street in said village. That the village officers, Wohlhuster and Smith, proceeded to answer the call and as the officers approached these premises they observed two unidentified men wrestling on the front lawn who were being watched by a number of their friends, who at the same time were walking back and forth into the yard hollering and talking. However, as the officers pulled into the driveway adjoining this scene the wrestlers separated and they and the spectators entered the home of Mr. and Mrs. Woosley, their hosts, located at the rear of the address.
The officers then went to the door of the Woosley residence and informed the occupants of the complaint. The defendant, David R. Jerome, stated to the officers that they had no right to tell them what to do and called one or both of them obscene names. Officer Smith thereupon entered the house and charged the defendant, David R. Jerome, with disorderly conduct. The defendant, Stanley J. Bailey, Jr., interceded and asserted the officers had no right to enter the building without a warrant, and thereupon a scuffle ensued between Bailey and officer Smith. Bailey was subsequently charged with disorderly conduct and was partially handcuffed. While under arrest this scuffle continued on the lawn where Bailey called the officer or officers various obscene names in the presence of a group of friends of both defendants and members of the public attracted thereto. In the meantime, the defendant, David R. Jerome, became a secondary actor in the events and was able to leave the Woosley residence without actually being detained. Nevertheless, he was arrested later in front of the police station while seated in his automobile and charged with the violation in question.
After the defendant, Bailey, was successfully handcuffed and placed in the police car then parked in the street, he again continued to swear in a loud voice at officer Smith either in the car or on Main Street in the village in the presence of a crowd that had assembled there.
Now, inasmuch as the lower court has found the defendants guilty as charged on the evidence produced by the People, it must be assumed that these and other facts that may be referred to in this opinion are based on credible testimony only.
On this appeal each of the defendants has raised these questions:
1. The village ordinance is illegal because it is inconsistent with State laws; to wit, section 722 of the Penal Law.
2. The information is fatally defective in that it does not specify or contain with exactness facts constituting the elements of the offense.
3. That the arrest of defendants without a warrant was illegal and that each of them was justified in resisting the unlawful arrest.
4. That the acts and words of the defendants did not constitute a violation of the ordinance beyond a reasonable doubt as a matter of fact or law in that the obscene language was not used in a public street or place of the village and that a disturbance did not occur on a public place.
Chapter 14 (§ 2, subds. [b], [d]) of the Ordinances of the Village of East Aurora provides as follows:
"Section 2. Conduct. Any person guilty of the following acts and offenses shall be deemed disorderly persons and guilty of disorderly conduct.
"(b) All persons guilty of noisy, riotous or disorderly conduct to the disturbance of the quiet of said Village. * * *
"(d) All persons who shall publicly use any profane or obscene language in any street or public place in said Village."
Relative to the defendant Jerome the credible evidence indicates that he used profane and obscene language only in the private residence of Mr. and Mrs. Woosley and not on a street or public place as required by the ordinance. That any and all subsequent acts of disturbance on his part, such as the incident at the police station at the time of his arrest, are not embraced within the place of occurrence specified in the information, that is to say, Main and Walnut or Maple Street in the village, and the Justice of Peace at the trial so held in limiting the issues and sustaining objection to such testimony. It, therefore, follows that the other legal questions in issue so far as David R. Jerome is concerned are academic and the judgment of conviction against him must be reversed, the information dismissed and the fine, if paid, remitted to him.
To determine whether or not the judgment can stand against the defendant, Stanley J. Bailey, Jr., the four questions on appeal must be resolved in the order raised.
1. Subdivision 59 of section 89 of the Village Law empowers the village "to enact any ordinances, not inconsistent with existing law which shall be deemed expedient or desirable for the good government of the village * * * the preservation of peace and good order", while section 93 of the same law authorizes penalties for each violation with power in the board to ordain "that a violation thereof shall constitute disorderly conduct, and that the person violating the same shall be a disorderly person; and such violation shall constitute disorderly conduct, and such person shall be a disorderly person." At the same time section 11 (subd. 3, par. [b]) of the Village Home Rule Law particularly authorizes villages to provide for enforcement of local laws and to prescribe "that violations thereof shall constitute misdemeanors or disorderly conduct". The scope and breadth of these laws are such as to leave no doubt that the Legislature intended that it is within the province of the village authorities to define disorderly conduct and fix a punishment therefor. To hold otherwise would make meaningless the clear and specific intent of the Legislature to grant powers to villages to determine for themselves the proper exercise of police powers within its jurisdiction for the special welfare and good government of its inhabitants under the conditions existing. If, however, the acts constituting disorderly conduct and the penalties prescribed under Village Law or Village Home Rule Law, are so unreasonably inconsistent with existing law as to be deemed oppressive, arbitrary or contrary to constitutional guarantees, the courts should not hesitate to find them "inconsistent with existing law". Surely some reasonable inconsistencies are to be expected, otherwise the necessity for the grant of power to villages to enact laws would not be necessary and the scope and field of Village Law would be entirely subject to legislative action. The latter was never intended.
It is well to note that the penalties prescribed in the village ordinance are not as severe as those in section 723 of the Penal Law and that otherwise the general import of Village Law is consistent with the section 722 of the Penal Law. The court therefore concludes and finds that the ordinance in question is valid.
2. The law is well established that an information or indictment charging a crime must state with some exactness the particular acts constituting the elements of the crime but this is not a requirement for a violation, in this instance, a village ordinance, concededly below the grade of a misdemeanor (see People v. Patrick, 175 Misc. 997, 999 and People v. Hipple, 263 N.Y. 242). Also, this court is of the further opinion that the information here contained sufficient facts and specific reference to the ordinance to reasonably apprise the defendant of the charge placed against him. Surely, nothing more should be demanded in an information of a simple ordinance violation. Therefore, this ground of appeal is rejected as a matter of law.
3. Under section 177 of the Code of Criminal Procedure, a peace officer cannot make an arrest for a misdemeanor unless the same was committed in his presence. Since the violation of an ordinance is not a misdemeanor, the justification for the arrest must be under some other appropriate provision of the law. In this instance, section 338 of the Village Law permits a peace officer to arrest a disorderly person for a violation of a village ordinance, with or without process, provided that it was committed in his presence. But in this case the defendant did not commit a violation even if he used profane and obscene language in the Woosley premises for the reasons stated in disposing of the appeal of the codefendant, David R. Jerome, so that the alleged arrest of the defendant, Stanley J. Bailey, Jr., was unlawful, and, under the authority of People v. Cherry ( 307 N.Y. 308) the defendant was authorized to use force to prevent an unlawful arrest with certain limitations as the physical necessities of the situation presented. The court, therefore, concludes that the acts of this defendant did not constitute "disorderly conduct to the disturbance of the quiet of said Village" in violation of chapter 14 (§ 2, subd. [b]) charged in the information because they can be considered necessary to prevent an unlawful arrest.
However, this resistance to an unlawful arrest did not permit, in the opinion of this court, this defendant to commit a violation of subdivision (d) of section 2 of chapter 14 of the ordinances by using obscene and profane language on the lawn of the Woosley premises and on Main Street, a public highway, in the village in the presence and hearing of persons forming part of the public. It would be unreasonable to hold otherwise because one wrong does not by any stretch of the imagination justify another. The principle of self-defense against unlawful resistance does not give the person violated the privilege of committing other violations of the law at that time and place, and, this court, therefore, affirms the conviction of defendant under subdivision (d) of section 2 of chapter 14 of the ordinance.
4. The credible evidence satisfies this court that the defendant is guilty beyond a reasonable doubt of the violation affirmed under point 3 and no reversible error was committed in this respect.
The judgment of conviction as to David Jerome is reversed, the information dismissed and fine remitted, if paid.
The judgment of conviction as to Stanley J. Bailey, Jr., is reversed as to subdivision (b) but affirmed as to subdivision (d). Inasmuch as the lower court pronounced sentence as to only one count, the fine of $100 may stand.