A Nassau Criminal Lawyer said that, this is a proceeding involving eight separate information charging the separately named defendants with a violation of Section 722-b of the Penal Law of the State of New York. Section 722-b reads as follows: § 722-b. Loitering in school buildings. ‘Any person not the parent or legal guardian of a pupil in regular attendance at said school who loiters in or about any school building or grounds without written permission from the principal, custodian or other person in charge thereof, or in violation of posted rules or regulations governing the use thereof, shall be guilty of disorderly conduct.’.
A Nassau Sex Crimes Lawyer said that, on September 21, 1960 defendants and the six additional named defendants, together with others, entered upon the property of the a certain Elementary School in the City of New Rochelle, New York. None of the defendants was a parent or legal guardian of a pupil in regular attendance at the school and none of the defendants had written permission from the Principal, Custodian or other person in charge thereof. The eight defendants were accompanied by a group of children. With the exception of the first defendant, all of the remaining seven defendants were parents of one or more children in the group. Thus, the only factual distinction between the defendant case and the second case is that it is conceded on the record that defendant did not have a child in the group at the School, and that as a matter of fact, defendant’s child was regularly enrolled at the Mayflower Elementary School in the City of New Rochelle, New York, and was in fact in attendance at the said Mayflower Elementary School at the time of the acts set forth in the information. There was no robbery or DWI in this case.
The City of New Rochelle is divided into twelve elementary school districts. The Board of Education of the City of New Rochelle has assigned to each of these districts a specially designated geographical area and children in the City wishing to attend elementary schools (kindergarten through sixth grade) are required to attend the elementary school to which their residential district has been assigned. The Superintendent of Schools testified the children are not permitted to attend elementary schools outside of their designated residential districts. The Superintendent further testified that the City contains two junior high schools, whose districts are also designated by the Board of Education, and that at the completion of the sixth grade of instruction at an appropriate elementary school a pupil is assigned to one of the two junior high schools, depending upon the residence of the pupil. The City School District operates a single senior high school (grades ten through twelve) which operates on a city-wide basis.
The issue in this case is whether defendants are liable for violation of Section 722-b of the Penal Law of the State of New York.
The record is barren of any evidence that the defendants had any opportunity to seek proper premission to be on school property prior to the issuance of the summonses.
The People’s brief states the evidence is uncontroverted that they (the defendants) did not enter for the purpose. This statement is unsupported on the record and is at best mere speculation. On the record in this case, however, there is some evidence as to why the defendants had entered upon school property. The defendant and the second defendant both testified that they entered upon school property in order to seek an interview with proper school authorities for the purpose of registering the children accompanying them at the Ward School. (Both defendants testified they had no opportunity to seek permission to make their request.) It is conceded that these defendants, on September 14, 1960, had gained admission to the office of the Principal of the School for the same purpose and were told that under the prevailing Rules and Regulations of the City School District of the City of New Rochelle the group of children were not eligible for registration at the School. It is also clear that these defendants, or at least, some of them, had, during a period of less than two weeks prior to September 21st, sought to register these children, or most of them, at nine other elementary schools in the City of New Rochelle.
We are not directly concerned in this proceeding with conduct of these defendants prior to September 21, 1960 because this conduct is not before us in the information which the People have filed herein. However this conduct does shed light in applying the legal test of ‘legitimacy of purpose.’
It is also undisputed that on all of these prior occasions when the defendants sought to register the children at the other elementary schools, and on September 14th, when they sought to register the children at the Ward School, the defendants were told on each occasion that the children whom they sought to register at these various schools were not residents of the District from which pupils were eligible to attend the particular schools. It is also undisputed that on none of the prior occasions were the defendants, or any other members of the group who sought registration in these other schools, apprehended or charged with any sex crime.
The distinctions, therefore, between the facts in the instant case, namely, the occurrence on the morning of September 21, 1960 and the facts relating to the other attempts to register the children, is that on September 21st the defendants made a second effort at the Ward School. The fact that on the 21st of September the defendants were accompanied by the children and also carried with them on September 21st folding chairs and some books, are not distinctions which are germane to the disposition of this action. None of the defendants were charged with any sex crime arising out of the fact that some of them may have carried chairs or carried books, or even that the chairs were used by some of the children during the approximate one-half hour that the defendants remained at point X-3, People’s Exhibit 2.
Even if the record did not clearly indicate the Rules and Regulations of the City School District of the City of New Rochelle with respect to residence requirements in connection with attendance at the various schools throughout the City, this Court would take judicial notice of these official public administrative orders.
There is no question that the defendants are entirely aware and had due notice of the Rules and Regulations of the City School District pertaining to elementary school registrations. It is equally clear that the defendants differed with the policy which brought about the present Rules and Regulations, and were seeking, by persuasion, argument, and protest, to bring about a change in these Rules and Regulations.
The People in their brief refer to the testimony of defendants to the effect that the defendants (the conduct of all defendants is by stipulation deemed to be the same as the defendant) would have stayed in the building for whatever period of time may have been necessary in order for them to have received an answer to their request to have the children registered at the school. The record is clear that the defendants did not say that they would have remained in the building had the answer been negative. The defendants merely testified that had they gotten into the building they would have stayed there for whatever period was required to get an answer to their application.
We find that all of the testimony as to what might or might not have occurred, had the defendants entered the school, can have no bearing whatever on the disposition of this case. Certainly a Court in applying a criminal statute cannot make a determination on the basis of events which never took place.
We return, therefore, to what actually occurred as shown by the record. After the defendants were halted by Patrolman at point X-3, some 30 feet from the entrance to the school, they remained there just long enough for Patrolman Bailey and his fellow officer, Patrolman to issue summonses to the defendants. This summons issuing process occupied most of the half hour that the defendants remained at point X-3. Taking another view of this occurrence, it would seem clear on this record that when Patrolman asked the defendants to halt, and during the period that he was issuing summonses, the defendants had no legal choice but to remain stationary.
It is conceded that these defendants are not being prosecuted as trespassers. Section 722-b does not use the word ‘trespassing.’ Furthermore, the Penal Law of the State of New York deals with the crime of trespassing in specific sections, namely, Section 2036 et seq. We, therefore, need not concern ourselves in this proceeding with any acts of these defendants that might or might not have constituted an illegal trespass. The issue is not before us.
We would point out, however, that if the People are able to establish the fact of illegal loitering within the meaning of Section 722-b, and if such fact occurred in a situation where Section 722-b would be applicable, it would not be necessary for a court to deal with the nature or effect of a so-called ‘sit-in.’ The record is clear that whatever the representatives of the People may have anticipated, and whether their anticipations were justified or not, the fact is that these defendants did not ‘sit-in.’ As a matter of fact these defendants merely remained stationary long enough to receive summonses. No charge has been made by the People based on the statements that some of the children accompanying these defendants sat on camp chairs on the patio outside of the Ward School while the defendants were receiving their summonses. The thrust of the People’s approach is that this Court should assume the occurrence of events which never took place, namely, a so-called ‘sit-in.’
The record indicates that the physical issuance of summonses by the two police officers commenced prior to or perhaps concurrently with the seating of the children on the school patio. As a matter of fact, the defendant Dennis testified the children were not seated until representatives of the press asked that they be seated in order to take pictures.
Finally, in our attempt to bring the facts into proper perspective, we should like to refer to statements in the People’s brief that the defendants had visited other schools in New Rochelle, including the September 14th visit to the Ward School, on a number of occasions prior to September 21st. Although, as we have stated, these prior visits undoubtedly sufficed to give the defendants ample notice of the City School District’s Rules and Regulations regarding registration, none of the defendants was charged with any violation of law as the result of these prior visits. As a matter of fact, one might reasonably argue that as a result of these prior visits in which the defendants, or some of them, sought to register children at various schools, the defendants were led to believe that such visits, even though perhaps futile, did not constitute a sex crime.
In the instant case we, therefore, hold that Section 722-b was not intended to, nor does it, apply to persons entering upon school property with a legitimate purpose, namely, to seek registration of their children in a school, even though the seeking of such registration of the children may involve the citizen in persuasion, argument and sharp differences of opinion with school authorities. Only when such conduct of citizens overtly affects the proper and normal conduct of a school would we believe that the legislature would have a constitutional right to impose a limitation upon such conduct.
Accordingly, the court finds the defendants before us not guilty of the offenses charged in the information. The information is accordingly dismissed and the defendants discharged.
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