PEOPLE v. BARRETT (2006)

This case represents another skirmish in the ongoing battle between the Police Department and the city's bicyclists.¹  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.²  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 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000];  People v. Dumas, 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [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 N.Y.2d 133, 139, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987];  People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 [1979];  People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 [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 N.Y. 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.³  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.” ⁴  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.” ⁵  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.” ⁶  A “procession” is a “group of persons, vehicles, or objects moving along in an orderly, formal manner.” ⁷  Similarly, a parade is “an organized public procession on a festive or ceremonial occasion.” ⁸  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 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [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 N.Y.2d 313, 318, 552 N.Y.S.2d 900, 552 N.E.2d 148 [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.⁹  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 F.2d 684, 690 [8th Cir.1992], quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 [1972], and citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 [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, 2006 WL 346491 [Sup. Ct., N.Y. 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 N.Y.2d 450, 455, 618 N.Y.S.2d 892, 643 N.E.2d 514 [1994];  see also In re Jacob, 86 N.Y.2d 651, 667, 636 N.Y.S.2d 716, 660 N.E.2d 397 [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 N.Y.2d 530, 531-532, 375 N.Y.S.2d 303, 337 N.E.2d 754 [1975], quoting Hague v. C.I.O., 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 [1939];  see also Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 568-569, 115 S.Ct. 2338, 132 L.Ed.2d 487 [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 U.S. 569, 574-576, 61 S.Ct. 762, 85 L.Ed. 1049 [1941];  Rosen v. Port of Portland, 641 F.2d 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 U.S. at 574, 61 S.Ct. 762).   However, since prior restraints on First Amendment freedoms are strongly disfavored (Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 [1969];  MacDonald v. Safir, 206 F.3d 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 N.Y.2d at 532, 375 N.Y.S.2d 303, 337 N.E.2d 754).   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 U.S. 316, 323, 122 S.Ct. 775, 151 L.Ed.2d 783 [2002] ).   Such regulations will be subject to strict scrutiny if they are not content neutral (id. at 321, 122 S.Ct. 775).¹⁰  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 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 [1992];  see also People v. Katz, 21 N.Y.2d 132, 135, 286 N.Y.S.2d 839, 233 N.E.2d 845 [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 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 [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 U.S. at 152, 89 S.Ct. 935;  Cox v. State of New Hampshire, 312 U.S. at 576, 61 S.Ct. 762).   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 F.3d 1022 [9th Cir.2006];  American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 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 F.3d 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 F.3d 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 F.3d 281, 285 [4th Cir.2005] [invalidates parade ordinance that could require permit for groups of two];  Burk v. Augusta-Richmond County, 365 F.3d 1247 [11th Cir.2004] [invalidates content-based licensing scheme that applies to groups of as few as five participants];  Douglas v. Brownell, 88 F.3d 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 F.3d 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 F.2d 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 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 [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, 812 N.Y.S.2d 829 [Crim. Ct., N.Y. 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, 812 N.Y.S.2d 829).   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, 812 N.Y.S.2d 824).   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 N.Y. 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, 812 N.Y.S.2d 829). 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, 812 N.Y.S.2d 829).

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 to 10 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 N.Y., Book 39, Art. 15;  American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 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 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 [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 F.3d at 611;  Smith v. California, 361 U.S. at 155, 80 S.Ct. 215 [1960];  cf. New York v. Ferber, 458 U.S. 747, 765, 102 S.Ct. 3348, 73 L.Ed.2d 1113 [1982];  Ginsberg v. New York, 390 U.S. 629, 643, 88 S.Ct. 1274, 20 L.Ed.2d 195 [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, 812 N.Y.S.2d 824).   Violation of AC § 10-110 can still lead to imprisonment of up to 10 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 F.2d 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 U.S. at 152-153, 80 S.Ct. 215 [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 F.3d at 611-612;  see also People v. Bezjak, 11 Misc.3d at 434-35, 812 N.Y.S.2d 829).

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 to 10 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 N.Y.2d 133, 136, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987];  People v. Al-Ladkani, 169 Misc.2d 720, 724-725, 647 N.Y.S.2d 666 [Crim. Ct., N.Y. 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, 321 N.Y.S.2d 986 [App. Term, 1st Dept.1971], citing People v. Carcel, 3 N.Y.2d 327, 332, 165 N.Y.S.2d 113, 144 N.E.2d 81 [1957];  People v. Nixon, 248 N.Y. 182, 187-188, 161 N.E. 463 [1928], overruled on other grounds, People v. Santos, 86 N.Y.2d 869, 635 N.Y.S.2d 168, 658 N.E.2d 1041 [1995] ).   Rather, defendant's conduct must create a serious interference with vehicular or pedestrian traffic (see People v. Pearl, 66 Misc.2d at 503, 321 N.Y.S.2d 986;  see also People v. Bezjak, 11 Misc.3d at 437, 812 N.Y.S.2d 829).

 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 N.Y.2d 769, 775, 658 N.Y.S.2d 233, 680 N.E.2d 606 [1997];  see also People v. Munafo, 50 N.Y.2d 326, 331, 428 N.Y.S.2d 924, 406 N.E.2d 780 [1980];  People v. Pritchard, 27 N.Y.2d 246, 248, 317 N.Y.S.2d 4, 265 N.E.2d 532 [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, N.Y.L.J., Oct. 15, 1997, at 34, col. 5 [App. Term, 2d & 11th Jud. Dists.], lv. denied 91 N.Y.2d 894, 669 N.Y.S.2d 8, 691 N.E.2d 1034 [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, 520 N.Y.S.2d 309 [Crim. Ct., N.Y. County 1987], affd., 142 Misc.2d 977, 543 N.Y.S.2d 892 [App. Term, 1st Dept.1989] app. den., 74 N.Y.2d 794, 545 N.Y.S.2d 555, 544 N.E.2d 233 [1989];  see also People v. Munafo, 50 N.Y.2d at 331, 428 N.Y.S.2d 924, 406 N.E.2d 780;  People v. Gonzalez-Muniz, 2001 N.Y. Slip Op. 40182[U], 2001 WL 1358594 [Crim. Ct., N.Y. 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, 812 N.Y.S.2d 829).   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 N.Y., 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 N.Y.2d at 775, 658 N.Y.S.2d 233, 680 N.E.2d 606 [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 N.Y.2d at 331, 428 N.Y.S.2d 924, 406 N.E.2d 780).   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, 248 N.Y. 182, 161 N.E. 463, supra and People v. Carcel, 3 N.Y.2d 327, 165 N.Y.S.2d 113, 144 N.E.2d 81, supra, 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 (Nixon, 248 N.Y. at 185-188, 161 N.E. 463;  see also People v. Pearl, 66 Misc.2d 502, 321 N.Y.S.2d 986;  US v. Williams, 2004 U.S. Dist. LEXIS 10943 [S.D.N.Y.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, 520 N.Y.S.2d 309).   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.

FOOTNOTES

1.   See e.g. Bray v. City of New York, 346 F.Supp.2d 480 [S.D.N.Y.2004] [Bray I ], subsequent opin., 356 F.Supp.2d 277 [S.D.N.Y.2004] [Bray II ];  City of New York v. Times Up, Inc., 11 Misc.3d 1052(A), 2006 WL 346491 [Sup. Ct., N.Y. County 2006];  see also, Baker, Police Seek New Controls on Protesters and Bicyclists, N.Y. Times, July 19, 2006, at B2, col. 1;  Baker, Police Move to Ease Proposed Rules on Permits for Protesters, N.Y. Times, August 19, 2006, at B1, col. 1.

2.   Indeed, at least one judge of this court relied on that representation in finding the Parading Law constitutional (see People v. Namer, 11 Misc.3d 409, 414-15, 812 N.Y.S.2d 824 [Crim. Ct., N.Y. County 2006] );  see also Affirmation of Joseph Perry in Response to Defendant Mazurkiewicz's Motion [Perry Aff.] ¶ 12;  Affirmation of Justin Delle Cave in Response to Defendant Giguere's Motion [Delle Cave Aff.] ¶ 6.

3.   American Heritage Dictionary of the English Language, Fourth Edition (2000);  Webster's Third New International Dictionary, Unabridged (2002).

4.   American Heritage Dictionary of the English Language, Fourth Edition (2000);  Webster's Third New International Dictionary, Unabridged (2002).

5.   American Heritage Dictionary of the English Language, Fourth Edition (2000);  Webster's Third New International Dictionary, Unabridged (2002).

6.   American Heritage Dictionary of the English Language, Fourth Edition (2000).

7.   American Heritage Dictionary of the English Language, Fourth Edition (2000);  Webster's Third New International Dictionary, Unabridged (2002).

8.   American Heritage Dictionary of the English Language, Fourth Edition (2000);  Webster's Third New International Dictionary, Unabridged (2002).

9.   The Court takes judicial notice that January 27, 2006, the date when defendants were arrested, was the last Friday of the month, which is the date on which Critical Mass rides normally occur (Bray I, 346 F.Supp.2d at 483).   However, the Court cannot infer from that coincidence that defendants were participating in a Critical Mass ride.   They may have had nothing to do with Critical Mass participants;  they might have been riding their bicycles, individually or as a group, and found themselves near participants in the Critical Mass ride;  or they might have been bicycling and decided to join the ride as it passed them.

10.   Defendants have not argued that the Parading Law is content based (see also People v. Bezjak, 11 Misc.3d 424, 431, 812 N.Y.S.2d 829 [Crim. Ct., N.Y. County 2006];  People v. Namer, 11 Misc.3d at 413-414, 812 N.Y.S.2d 824).

ELLEN GESMER, J.