PEOPLE v. BULL (2004)

Judgment of conviction rendered December 12, 2001 (Ellen M. Coin, J.) affirmed.

The 11 defendant-appellants herein, self-proclaimed anarchists, were convicted after a nonjury trial of loitering (Penal Law § 240.35[4] ) ¹ upon proof, now unchallenged on either sufficiency or weight of the evidence grounds, that they and others gathered next to each other “as a group” and covered their faces with bandanas while shouting epithets and political slogans during a May Day demonstration in Union Square Park.

 Defendants' constitutional challenges to the anti-mask provisions of Penal Law § 240.35(4) are lacking in merit.   The statute, “aimed at deterring violence and facilitating the apprehension of wrongdoers” (Church of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 [2d Cir.2004] ) ² , neither infringes upon any First Amendment right to anonymous speech nor constitutes impermissible viewpoint discrimination.   As the Second Circuit noted in rejecting similar First Amendment claims in Kerik, no Federal appeals court has ever “held that freedom of association or the right to engage in anonymous speech entails a right to conceal one's appearance in a public demonstration.”  (356 F.3d at 209.)   Since, as Kerik makes clear, enforcement of the anti-mask law did not implicate defendants' First Amendment rights, defendants' constitutional overbreadth and vagueness arguments, each premised upon First Amendment doctrine, necessarily must fail as well.

 Nor did the trial court improperly shift the burden of proof from the People to defendants on any recognized element of the loitering offense charged.   To the extent that Criminal Court (Gregory Carro, J.), in denying defendants' pre-trial dismissal motion, purported to “save” the anti-mask statute from a perceived “constitutional infirmity” by construing the statute to prohibit the collective wearing of masks “for no legitimate purpose” (People v. Aboaf, 187 Misc.2d 173, 184, 721 N.Y.S.2d 725), that ruling is at odds with the Second Circuit's subsequent decision in Kerik upholding the constitutionality of the statute as written.   Inasmuch as proof of the “legitimacy” of the reason(s) for the defendant's mask-wearing was not an essential element of the loitering offense as defined in the Penal Law, the trial court's in limine ruling, which allowed defendants to introduce evidence as to the non-statutory “legitimate purpose” defense carved out by the motion court, did not ease the People's trial burden or cause defendants any discernible prejudice.

 Finally, the underlying informations were jurisdictionally valid even though they did not allege the inapplicability of the “masquerade party or like entertainment” exemption contained in Penal Law § 240.35(4).  “[T]he requirements of common sense and reasonable pleading” (People v. Devinny, 227 N.Y. 397, 401, 125 N.E. 543 [1919] ) warrant the treatment of the masquerade party exemption as a proviso to be raised as a defense by a defendant, rather than as an exception to be pleaded and proved by the People.   Unlike a true exception, the statutory language excludes masquerade parties and similar entertainment events conditionally, not absolutely (see McKinney's Cons. Laws of N.Y., Book 1, Statutes § 211), and only through reference to municipal regulations found outside the statute (see People v. Kohut, 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312 [1972] ).

This constitutes the decision and order of the court.

FOOTNOTES

1.   The statute provides that a person is guilty of loitering when he or she “[b]eing masked or in any way disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised ․ except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities.”

2.   That enforcement of the anti-mask law may have effectively served to further these salutary crime-prevention goals in this case is supported by evidence that defendants, upon arrest, were in possession of such items as a hammer, ink markers, paint-filled balloons, and metal “slingshot”-type “cans” used for “hurl[ing]” such balloons.

PER CURIAM.