Queens Court Upholds Constitutionality of Unlawful Assembly Statute, Takes Judicial Notice of the “Violent” Nature of the Latin Kings

A Queens County Criminal Court issued a written opinion last week in a case in which several alleged Latin Kings members raised a First Amendment challenge to New York’s Unlawful Assembly Statute. People v. Sanchez, Cuevas, Hernandez, Quiles, 2009QN014633, N.Y. L.J. Oct. 6, 2009, (Queens Co. Crim. Ct., Koenderman, J., Sept. 29, 2009). That statute reads as follows:

PL sec. 240.10. Unlawful assembly

A person is guilty of unlawful assembly when he assembles with four or more other persons for the purpose of engaging or preparing to engage with them in tumultuous and violent conduct likely to cause public alarm, or when, being present at an assembly which either has or develops such purpose, he remains there with intent to advance that purpose.

Unlawful assembly is a class B misdemeanor.

PL sec. 240.10. In Sanchez, the arresting officer observed the defendants, along with several other apprehended individuals at Southern Field Park, near the Aqueduct racetrack in Queens. Nobody present at the arrest scene possessed a “valid special events permit” allowing for the large assembly. The defendants (as well as some of the others present at the park) were wearing black and yellow, which the arresting detective stated are the official colors of the Latin Kings Gang. Those present were allegedly displaying “hand signs and distinctive hand shakes.” From these observations, the trained gang detective concluded that the defendants were engaged in a “universal meeting at which future gang activities are planned and discussed including violent criminal activity.” Sanchez, N.Y. L.J. Oct 6, 2009 (internal quotations omitted).

The defendants posed a First Amendment challenge to the Unlawful assembly statute by arguing that it is unconstitutionally overbroad, and thus invalid on its face. Judge Koenderman, in a thoroughly reasoned opinion, distinguished the present statute from those that had been held to be overbroad in the wake of Brandenberg v. Ohio, 395 US 444 (1969) and its progeny. The Court reasoned that the Unlawful assembly statute, by definition, criminalizes only assembly for the planning of tumultuous and violent activity: “Unlike the Ohio Criminal Syndicalism statute declared unconstitutional in Brandenburg, New York’s Unlawful Assembly statute does not purport to penalize assembly with others ‘merely to advocate’ the use of force or violence (see Brandenburg, 395 US at 449). Rather, it punishes assembly with others “for the purpose of engaging or preparing to engage…in tumultuous and violent conduct likely to cause public alarm” (PL §240.10). Sanchez, supra. Thus, the consitutional challenge was rejected.

Another interesting aspect of the case was the Court’s explicit ruling taking judicial notice of the “fact” that the Latin Kings are a violent street gang. In determining that the facts alleged in the criminal court complaint were sufficient to make out a charge of Unlawful assembly against the defendants, the Court observed that “[j]udicial notice may be taken of current events that are relevant to a court’s decision. The Latin Kings’ reputation as a violent street gang is well known.” Sanchez, supra, at n.2 (citations omitted). It is unclear whether the Court needed to take judicial notice of the gang’s violent nature in light of the officer’s testimony concerning his training on and experience with the “gang.” In any event, some may be of the opinion that the taking of judicial notice under these circumstances was improper, given the rule that a “court may notice a fact which is ‘a matter of common and general knowledge, well-established and authoritatively settled. . . .’” Prince, Richardson on Evidence, sec. 2-201 (2008 ed.) (quoting Wertling v Manufacturers Hanover Trust, 118 Misc2d 722, 726, 461 NYS2d 157, 160).

Some may say that taking notice of the Latin Kings’ reputation as a “violent street gang,” strains the outer limits of the judicial notice rule, as some may be of the opinion that the allegedly violent nature of the Latin Kings gang is hardly well-established, common or general knowledge, and probably not a “current event.”