RESPONDENT: New York
LOCATION: Virginia General Assembly
DOCKET NO.: 399
DECIDED BY: Warren Court (1965-1967)
CITATION: 386 US 773 (1967)
ARGUED: Apr 12, 1967 / Apr 13, 1967
DECIDED: May 08, 1967
Facts of the case
Media for Turner v. New YorkAudio Transcription for Oral Argument - April 13, 1967 in Turner v. New York
Audio Transcription for Oral Argument - April 12, 1967 in Turner v. New York
Number 399 William Turner et al., Petitioners, versus New York.
Osmond K. Fraenkel:
Mr. Chief Justice may it please the Court.
I was not able to see respondent's brief until late Monday because I had been out of the country for some weeks and I therefore prepared a Xerox, a very short reply brief dealing with one point in respondent's brief which I would like to submit and will replace by a printed brief in the requisite number of copies and so on when I get back to New York tomorrow or Friday.
Osmond K. Fraenkel:
I have given my advisory a copy.
Osmond K. Fraenkel:
This is on appeal rather by certiorari here from conviction of a group of individuals in the Criminal Court of the City of New York, convictions which where affirmed by the appropriate appellant court and then reviewed by New York's highest Court, the Court of Appeals and there affirmed without opinion, but with an Amendment to the remitted toward indicating the constitutional issues had been raised which are the precise constitutional issues referred to in the petition.
The case arose as a result of the meeting held in an area just north of Times Square in New York City known as Duffy Square, which is a triangular area between Broadway and 7th Avenue and this was a meeting protesting the Vietnam War and it began around 4 o'clock on a certain afternoon in summer time.
The testimony is somewhat in conflict which I will develop later, but before I get to the testimony I think it is important for the Court to hear exactly what the complaint contained, because my first contention is that these petitioners were convicted for things not specified in the complaint.
That conviction therefore cannot stand being a denial of due process under De Jonge against Oregon, Cole against Arkansas, Thomson against Louisiana, and Garner against -- Now the complaint says this.
At 4:25 pm on August 8, 1964, vicinity Duffy Square, 47th Street and Broadway the defendants did unlawfully congregate and assembled at the above location obstructing the area to the exclusion of those wishing to use the same and did delay vehicular traffic while carrying placards and using loud and boisterous language; by their actions did cause a crowd to collect.
When ordered to move on the defendants did fail to do so, after being informed that their actions were not lawful and the references of course to the New York Disorderly Conduct Statute, Appeal Law Section 722 specifically to Sections 2, 3 and 4 to which I will come later.
Now it was the defense's contention at --
Osmond K. Fraenkel:
Yes, oh yes.
It was the defendant's contention at the trial, it is that contention all the way up at here that this complaint charged them with holding an unlawful meeting which the police had a right to disperse because the meeting was unlawful in the respects indicated.
Whereas at the trial there was testimony produced over objection by the defense specifically on that ground.
From various acts committed by most of these petitioners although curiously enough not all, which occurred after the order to disperse, beyond the mere allegation of the complaint that they refused to move on, act such as two of them lying down on the street.
One of them hit a policeman's horse, others running around and interfering with the police's attempts to break up the meeting, various acts which was stressed in the appealing of the appellant term affirming the convictions as justifying them.
Now our view is that except for the failure to move on, nothing which happened after the order to disperse is relevant to this particular complaint which rests on the proposition that before there was an order to move on, there was an unlawful assemblage.
We submit that therefore the convictions cannot stand because in the first place no one can tell from this record whether these petitioners were convicted because there was an unlawful meeting before the order to disperse or because of unlawful conduct afterwards.
The trial court wrote no opinion in finding all of the defendants guilty, although some distinction was made in the sentence, three of them were fined $25 and the others were fined with suspended sentences.
But the appellant term expressly relied on these subsequent events as justifying the convictions and so does my opponent in his brief here.
Now he says that the complaint is susceptible to the interpretation which he gives to it and which the appellant term gave to it, because of the reference in the beginning of the complaint to this time of 4:25 pm, to which I say two things.
In the first place these defendants were not operating at that meeting with stop watches in their hands so that they would know at what time of the meeting 4:25 arose, but in the second place and this I consider to be basic and this what is discussed in my brief reply, under New York law, well settled law as decided by our Court of Appeals, the time mentioned in a charge is of no relevant and whatever, except in those rare cases where it might have some relevance as to whether an offense is committed in the day time or at night, but otherwise it's no relevant whatever and the prosecution is in no way bound by it, but can prove the offenses occurring at any time.
So that the reference to 4:25 we submit gave no notice or warning to these defendants that they were going to be charged with things that occurred after the order to disperse even if any of them had been conscious of the fact that order was given before 4:25.
Now here is what the testimony showed.
And I should point out that there were three classes of witness at this trial; police officers, defendants, and a reporter for the New York Times, a man by the name of Joseph Lelyveld who is by line members of this Court may have seen in the Times in recent months.
He was there in his capacity as a reporter.
He is only therefore disinterested person in our view.