
    The People of the State of New York, Respondent, v. James Horelick, Appellant.
    Argued May 1, 1972;
    decided June 7, 1972.
    
      
      Paul G. Chevigny for appellant.
    
      Frank S. Hogan, District Attorney (Robert A. Goldschlag and Lewis B. Friedman of counsel), for respondent.
   Breitel, J.

Defendant Horelick stands convicted of criminal trespass in the second degree, a class B misdemeanor (Penal Law, § 140.10, prior to amdt. L. 1969, ch. 341) and for resisting arrest (id., § 205.30). He has been sentenced to a fine of $500 or to serve 60 days’ imprisonment if the fine is not paid.

Both crimes were committed in resisting the exclusion of Horelick and other school teachers from a closed, locked high school, and the ensuing arrest by police officers. The events occurred during an emotional and incipiently riotous confrontation between factions during a so-called city-wide teachers’ strike. The issue is not the lawfulness of the closing of the school, on which there may be divergent views, but the use of self-help to enter the school and then additional force to prevent arrest. Put another way, the issue is whether the resort to self-help by “breaking and entering” in the classic sense, is permitted, an issue laid to rest long ago by successive and ancient statutes relating to forcible entry and detainer (see Real Property Actions and Proceedings Law, § 853; former Penal Law, § 2034, and source annotations; as to use of force against the person to gain entry, see Model Penal Code [Tent. Draft No. 8, May 9,1958], § 3.06, esp. subds. [2], [3], and [6], including Comments, esp. at pp. 42-45; Restatement, 2d, Torts, § 88; Scope Note, at pp. 158-159; Ann., Right to Use Force, 141 A. L. R. 250, esp. 276).

Stating the issue thus, and it is stated correctly, the convolutions of theory and conflicting pronouncements by the embattled school authorities whether the schools were to be open or closed are immaterial. So are, ultimately, analyses related to claims of right by owners and others entitled to rights of entry under property law. Even such property rights, by still being subject to restrictions on the use of force, emphasize the policy against self-help by force or other illegal methods.

There is no doubt that the president of the board of education, and perhaps the board, had directed that the schools be kept open. It is equally undoubted that school principals are the immediate authorities in charge of their school buildings, with power (the exercise of which is reviewable by their superiors) to direct schools to be open or closed. Safety of students and teachers requires no less authority. There was also a prescription for opening schools improperly closed and that prescription was not followed by defendant Horeliclc or his associates.

The principal in question, rightfully or wrongfully, had directed that the high school be kept closed. The school custodian, subject to the principal’s command, and in charge of the school building while it was closed, kept it closed. It is irrelevant whether they did so out of factional motivation or because of fear that this high school, if opened, would be out of control. For their judgment and action, their conduct is reviewable elsewhere, and not by the subordinate school teachers, individually or as a body.

(Significantly, after the disorders and violence of October 17, the superintendent of schools issued a directive on the procedure for opening schools, which included the following: ‘11. Try to obtain key from the school principal. 2, Contact area office for: a) possible assistance; b) key to school if available. 3. District Superintendent try to obtain key from custodian or from police precinct by asking a patrolman to come with the key [This is subject to negotiation being carried on with Commissioner Leary and based on the assumption that the custodian did not change the locks.] Only the District Superintendent or the school’s principal or the person designated as acting principal known to the Police Precinct may arrange for a ‘ legal ’ break-in by: a) getting a locksmith; b) breaking lock or window in the presence of a policeman. They will permit this only in the presence of the District Superintendent or regularly assigned principal or designated acting principal.”)

The fact is that on October 17, 1968 the school building was closed. A group of teachers, including defendant Horelick, planned a take-over of the building, surreptitiously if possible. Horelick gained access to the building through a basement window and was discovered by a member of the custodial staff. A struggle ensued during which Horelick tried to open the locked doors of the school to admit his allies, who were not necessarily teachers or students. A police officer was caEed and Horelick resisted the arrest by physical efforts, trying to kick the policeman. It was when he was being placed in the police car that the codefendant Adickes played her part in repeatedly opening the police car door. While this was going on, a crowd of about 60 people, sympathetic to the open school effort, surrounded the police car.

To resolve the issue on whether the school was properly closed or not is, as has been already said, immaterial. The issue turns on whether the affected teachers had a 1 ‘ license ” or “ privilege ” to open the school by surreptitious entry and force, and not whether they had a right or duty to be in the school (Penal Law, § 140.00, subd. 5). Since only force or some other illegal method could be used to effect an entry which would inevitably provoke counter-force (in this case, even riot), the remedy to open the school was by seeking the assistance of superiors who had the power (and perhaps the duty) to open the school. Even they were not entitled to use force, but they, if they wished to persist in their purpose to open the school, had to resort to the assistance of the police, and beyond that the courts. Whether one views the problem from the position of the 4 4 striking ’ ’ teachers or their antagonists it is not tolerable that the controversies be resolved in the streets or the school corridors, instead of under law, and in the courts, if necessary.

In this context, it is of less consequences, and it is even sadly regrettable, that a school teacher should suffer a penal sanction for conduct motivated by an ideology, even if sincere. It would be of the gravest consequence, however, to suggest that self-help force may be condoned or justified by an inapplicable analysis whether the school4 4 lawfully ’ should have been open or closed.

Accordingly, the order of the Appellate Term should be affirmed.

Bergan, J. (dissenting).

The defendant’s conviction for criminal trespass (Penal Law, § 140.10) and for resisting arrest (Penal Law, § 205.30) must be reversed on the ground his guilt was not established beyond a reasonable doubt.

The highest legal authority over school property in the school district of the City of New York is vested in the board of education (Education Law, art. 52, §§ 2550, 2554[4]). The custody and control of 44 all ” school property is there. (See, also, generally on school property, Education Law, § 414.)

John Doar, who on October 16, 1968 and immediately thereafter was the president of the board of education, testified that the board had voted to keep the schools open during the then current teachers’ strike and the board also had agreed on the text of a 44 directive ” which he was authorized by the board to publish.

This directive, he testified, was addressed to the superintendent of schools, 44 to the employees of the school ”, to the students, to their parents and to the citizens of the city. The Assistant District Attorney on the trial expressly conceded, in answer to the court’s question, that the directive “ was formulated by a majority of the Board at a duly constituted meeting ”.

Mr. Doar also testified unequivocally that the schools were never closed by the board during the strike, either informally or formally, and that some of the employees of the Board were illegally, without authority closing the schools and locking them ”.

The directive as published was ‘ ‘ to tell publicly employees of the Board and custodians and [that] we want to make it clear even if one teacher would want to go to school to teach that the school would be open ”.

The People argue that Gerard Oak, principal of Washington Irving High School, had general authority over that school under the by-laws of the board of education, and had ordered it closed on October 17 when defendant entered the school. They also note that Nathan Brown, executive deputy superintendent of schools, had issued under the authority of the board a procedure for opening a school when ‘ ‘ the custodian refuses to open the school

But it is clear from Mr. Dear’s testimony that the board of education’s directive the schools be open if there is only one teacher going to the school ’ ’ was not affected by either of those circumstances as of the time material to this prosecution. The normal and routine authority of the local principal to close the Washington Irving High School under the by-laws was superseded by the board’s contrary directive. Mr. Doar made it explicit that the procedure governing 6 ‘ authority of persons to open the schools ” came “ Not until after ” the directive to all teachers and employees to come to the schools had been issued.

If there is confusion in the sequential exercise of authority under the board’s action here, it is a confusion which does not help the prosecution to establish beyond a reasonable doubt that this defendant teacher 1 ‘ knowingly ’ ’ entered or remained “ unlawfully in a building ” (Penal Law, § 140.10).

Mr. Horelick was assigned to this school and his right'— indeed his duty under the board’s directive—was to be there in spite of an illegal strike. As already noted the highest authority in the school system had published a directive advising that the schools would remain open and inviting teachers to come to work.

Actually, the board regarded the closing of schools by custodians as “unlawful”. That defendant came in through a window is not remarkable in the light of the hostility of custodians who were wrongfully closing the school. The prosecutor, therefore, has not established beyond a reasonable doubt that defendant was “wrongfully”- in the school in which he was assigned to teach and both prosecutions on this charge are. essentially similar.

Even if the legal right of defendant to be in the school were far more debatable than it is, a case would not be made out. The Appellate Division in People v. Barton (18 A D 2d 612) noted that a “ colourable claim of right—even if it were mistaken— negatives the criminal intent necessary for a conviction under section 2036 of the Penal Law [predecessor to § 140.10] ”. (See, also, Judge Andrews’ dictum on a legally mistaken entry on land in good faith in People v. Stevens, 109 N. Y. 159, 163.)

The decision in People v. Williams (25 N Y 2d 86), relied on by the People, is quite different, based as it was on proof of obstruction of public officers in discharge • of duty under an entirely different kind of statute (former Penal Law, § 1851). The prosecution here for criminal trespass is sharply distinguishable, and it is enough to say that it is not established beyond a reasonable doubt.

Nor is the prosecution for resisting arrest (Penal Law, § 205.30) established beyond a reasonable doubt. When the testimony of the arresting officer, Patrolman John Van Houten, is analyzed, it is manifest that defendant put his hand up as though protesting the arrest without touching the officer. Although the officer initially testified that defendant “ kicked at me ”, he altered this on cross-examination to say “ Attempted to kick me ”. When his actual observation was sought he said merely that defendant “ moved his leg ” toward him.

The remaining proof bearing on an attempt to prevent arrest consisted of the officer’s testimony that defendant was “ Sort of twisting his body around, waiving his other arm [the one not handcuffed] ” and “ More or less sort of wiggling his arms ” and kept putting Ms feet out in front of Mm ” and on the side of the radio car ”.

This does not actually establish the defendant’s guilt for attempting to “ prevent ” the officer from effecting ” an authorized arrest under section 205.30 of the Penal Law (see People v. Adickes, 30 N Y 2d 461, decided today). Nor is this Mnd of minor objection to arrest a fair basis for a separate prosecution on a distinct crime.

The order should be reversed and the charges dismissed.

Judges Burke, Scileppi and Jasen concur with Judge Breitel ; Judge Bergan dissents and votes to reverse and dismiss the information in a separate opinion in which Chief Judge Fuld and Judge Gibson concur.

Order affirmed. 
      
       Paragraph 2 of the instructions read: “ In the event that the school cannot be opened because the custodian refuses to open the school, or is not present, call the borough custodian headquarters — as a second step, call the office of Mr. Hudson and Mr. McLaren.”
     