In 1927, Justice Brandeis wrote:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women.... To justify suppression of free speech [and assembly] there must be reasonable ground to fear that serious evil will result if free speech [or assembly] is practiced (Whitney v California, 274 U.S. 357, 376 [Brandeis, J., concurring][brackets added]).

Accusatory instruments were filed with the court on February 11, 2008, charging 43 defendants with Unlawful Assembly (Penal Law § 240.10) and Trespass (Penal Law § 140.05).^[FN1] Several defense counsel have filed motions on behalf of their clients, moving for orders dismissing the accusatory instruments, contending that they are jurisdictionally defective. Some defendants orally joined in the motions of their alleged cohorts. The People oppose the defendants' motions. Since the charges arise out of one incident, this court will collectively apply counsel's submissions to all of the defendant involved.

Facts

The accusatory instruments contain the sworn allegations of a police officer that on February 10, 2008, "at approximately 1730 hours" (emphasis added), the defendants were inside of Clove Lakes Park at the corner of Forest Avenue and Clove Road, "after dusk". With "clearly posted signs stating, in sum and substance, NO TRESPASSING AFTER DUSK", more than four defendants (a total of 43) stood together, used "hand gestures", screamed and yelled "AMOR DE REY", and were "flailing their arms at one another" causing unidentified passers-by to experience annoyance and alarm.

The accusatory instruments do not state the basis for the police officer's conclusion that 1730 hours was after dusk. In their response, the People allege that the defendants were in the [*2]park "at approximately 1730 hours (05:30 p.m.)" (emphasis added). Although the accusatory instruments allege that there were "clearly posted signs stating, in sum and substance, NO TRESPASSING AFTER DUSK", there is no allegation that such sign was present at every entrance. Nor do the People allege the distance of the defendants from the nearest sign. The People do not contest the defendants' contention that the closing sign nearest to them was "roughly one mile away." The accusatory instruments do not explain the significance of alleged "hand gestures", nor do they provided a translation of "AMOR DE REY" or its significance.^[FN2]

Discussion

When a defendant is charged in a misdemeanor complaint, unless he pleads guilty or waives prosecution by information, the misdemeanor complaint must be replaced prior to trial with an information which meets the requirement for facial sufficiency (CPL §§ 170.65; 100.40 [1] [c]; 100.15 [3]; 170.35; People v Alejandro, 70 NY2d 133 [1987]). The information must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case (People v Alejandro, 70 NY2d 133, supra). Furthermore, both informations and misdemeanor complaints must allege or be based on "reasonable cause to believe" that defendant committed the offense (People v Dumas, 68 NY2d 729 [1986]). " Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it...." (CPL § 70.10 [2]).

Case law has recognized a Constitutional safeguard before a charge of Unlawful Assembly (Penal Law § 240.10) can be found. To establish a prima facie case, the defendant's "actions must constitute an incitement which is both directed towards and likely to produce imminent violent and tumultuous conduct" (People v Bilsted, 150 Misc 2d 872 [Crim Ct, NY County 1991], citing Brandenburg v Ohio, 395 U.S. 444 [1969]). In this case, the People have not alleged sufficient sworn allegations of fact that the defendants' actions were likely to produce imminent violent and tumultuous conduct. In fact, the only people who appear to have been in danger were the defendants who were flailing and gesturing at each other.

The People have failed to provide sufficient allegations of fact to establish that the defendants committed Trespass (Penal Law § 140.05) by knowingly or unlawfully entering or remaining on property. The gravamen of the case involves two issues. Does the accusatory instrument contain sufficient facts alleging that the defendants were in the park unlawfully because it was after dusk,

and that the defendants knew that being in the park after dusk was unlawful because of signs?

The accusatory instruments do not specify how the complaining police officer concluded [*3]that it was after dusk when he observed the defendants in the park. Although this court could take judicial notice that some distinct times, such as 0100 hours (1:00 a.m.) or 2300 hours (11:00 p.m.), are after dusk in New York City in February, it cannot do the same for "approximately 1730 hours" (5:30 p.m.). The People allege that according "to the National Weather Service website for February 10, 2008, sunset or dusk occurred at 1724 hours or 05:24 p.m. Based on this fact...[the 43 defendants were in the park] past sunset or dusk." However, according to the National Weather Service, which is part of the U.S. Department of Commerce's National Oceanic Atmospheric Administration (NOAA), "dusk or civil dusk" is:

...the time at which the sun is 6 degrees below the horizon in the evening. At this time objects are distinguishable but there is no longer enough light to perform any outdoor activities [http://www.srh.noaa.gov/ffc/html/gloss3.shtml].

While the People equate "dusk" with "sunset", the defendants rightly take issue. The defendants point out that "dusk" is defined by Webster's Ninth Collegiate Dictionary (1990) as "the darker part of twilight, especially at night". According to NOAA, "sunrise and sunset" conventionally refer to the times when the upper edge of the disk of the Sun is on the horizon, considered unobstructed relative to the location of interest where atmospheric conditions are assumed to be average, and the location is in a level region on the Earth's surface (http://www.srh.noaa.gov/elp/climat/astro/define2006.html).

NOAA considers "civil twilight" to begin in the morning and end in the evening when the center of the Sun is geometrically 6 degree below the horizon, when terrestrial objects are clearly distinguished under good weather conditions, the horizon is clearly defined at the beginning of morning civil twilight or the end of evening civil twilight, and artificial illumination is normally required to carry on outdoor activities in the morning before the beginning of civil twilight and in the evening after the end of civil twilight (http://www.srh.noaa.gov/elp/climat/astro/define2006.html). ^[FN3]

For computational purposes, according to NOAA, civil twilight begins before sunrise and ends after sunset, when the geometric zenith distance of the center of the Sun is 96 degrees (6 degrees below a horizontal plane).^[FN4] In contrast, sunset occurs when the geometric zenith distance [*4]of the center of the Sun is 90.8333 degrees, when the center of the Sun is geometrically 50 arcminutes below a horizontal plane. For an observer at sea level, with a level and unobstructed horizon, under average atmospheric conditions, the upper limb of the Sun will then appear to be tangent to the

horizon at sunset (id.).^[FN5]

Therefore, according to the National Weather Service, cited by the People as authority and part of the U.S. Department of Commerce's National Oceanic Atmospheric Administration (NOAA), dusk or civil dusk, is the equivalent of the end of civil twilight, in the evening. According to the U.S. Naval Observatory Astronomical Applications Department, civil twilight ended at 5:53 p.m. on February 10, 2008, in "Staten Island, Richmond County, New York (longitude W74.2, latitude N40.6)" (http://aa.usno.navy.mil/cgi-bin/aa_pap.pl).

Even if this court were to accept the People's definition of dusk as "sunset", the court would

take judicial notice of the following caveat found on the NOAA website:

Accuracy of rise/set computations. The times of rise and set phenomena cannot be precisely computed, because, in practice, the actual times depend on unpredictable atmospheric conditions that affect the amount of refraction at the horizon. Thus, even under ideal conditions (e.g., a clear sky at sea) the times computed for rise or set may be in error by a minute or more. Local topography (e.g. mountains on the horizon) and the height of the observer can affect the times of the rise or set even more. It is not practical to attempt to include such effects in routine rise/set computations.

The accuracy of rise and set computations decreases at high latitudes. There, small variations in atmospheric refraction can change the time of rise or set by many minutes, since the Sun and Moon intersect the horizon at a very shallow angle. For the same reason, at high altitudes, the effects of observer height and local topography are magnified and can substantially change the times of the phenomena actually observed, or even whether the phenomena are observed at all [derived from the Explanatory Supplement to the Astronomical Almanac, ed. P.K. Seidelman [1992], pp 482ff http://www.srh.noaa.gov/elp/climat/astro/define2006.html].

It is unreasonable to expect a police officer in Clove Lakes Park to calculate whether the geometric zenith distance of the center of the Sun was 96 degrees (6 degrees below a horizontal plane) when he observed the defendants. However, a police officer could delineate whether terrestrial objects are clearly distinguished under good weather conditions, or if artificial illumination is required to carry on outdoor activities such as baseball.

Although the issue of whether it was after dusk when the defendants were observed in the park is one that would be explored at trial, it must be pleaded with sufficient sworn allegations of [*5]fact. The accusatory instruments do not describe weather conditions or the complainant's ability to observe objects on the ground. Although the complainant provided a conclusory allegation that the defendants were in the park at "after dusk" at "approximately 1730 hours", the People have not supplied a sufficient basis for the complainant's conclusion that "approximately 1730 hours" in Clove Lakes Park is after dusk, or even after sunset. At the time and place alleged in the accusatory instrument, was the complainant at sea level, with a level and unobstructed horizon, under average atmospheric conditions, after the upper limb of the Sun appeared to be tangent to the horizon? If not, how was "sunset or dusk" calculated, since the offenses allegedly took place "at approximately 1730 hours" (emphasis added), and the People, in their response contend that according to "the National Weather Service website for February 10, 2008, sunset or dusk occurred at 1724 hours or 05:24 p.m."?

The second reason the Trespass count is insufficient is because the People have not alleged sufficient sworn allegations of fact that the defendants' presence in the park was unlawful. The accusatory instrument contains the allegation of "clearly posted signs stating, in sum and substance, NO TRESPASSING AFTER DUSK". However, there is no allegation that such a sign was present at every entrance. The complainant does not describe the size of the park, or the distance of the defendants to the nearest sign. The People do not contest the defendants' allegation that the closing sign nearest to them was "roughly one mile away." Once the People have chosen to rely on signs as supplying constructive notice of the unlawful nature of entering or remaining, it becomes incumbent on the People to show that the notices were visible and reasonably placed. For an

example of how to give notice by posting, see Environmental Conservation Law § 11-2111.^[FN6]

Although the defendants have not asked for an order dismissing the charges in the interest of justice (see CPL § 170.30 [1][g]), the People, in their response, raise the issues of the "impact of a dismissal upon the confidence of the public in the criminal justice system and the impact of a dismissal on the safety and welfare of the community." However, those concerns do not override the due process requirements of CPL §§ 170.65; 100.40 [1] [c]; 100.15 [3]; 170.35; Brandenburg v Ohio (395 U.S. 444 [1969], supra);and People v Alejandro (70 NY2d 133 [1987], supra).^[FN7]

Accordingly, it is hereby: [*6]

ORDERED, that the accusatory instruments charging the defendants with Unlawful Assembly (Penal Law § 240.10) and Trespass (Penal Law § 140.05) that allegedly occurred on February 10, 2008, at approximately 1730 hours inside of Clove Lakes Park at the corner of Forest Avenue and Clove Road, are dismissed.

This opinion shall constitute the opinion and decision of the court.

Dated: May 5, 2008

__________________________

Hon. Matthew A. Sciarrino, Jr.

Judge of the Criminal Court