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State v. Cappon

Decided: December 22, 1971.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ADRIAN CAPPON, DEFENDANT



Mehler, J.s.c.

Mehler

Defendant, who has been indicted for an alleged violation of N.J.S.A. 2A:148-10(b), has moved to declare the statute unconstitutional on its face and to dismiss the indictment as one founded on a void statute. More specifically, he contends that the statute violates the First and Fourteenth Amendments in that it is vague and overbroad.

N.J.S.A. 2A:148-10 provides as follows:

Any person who, in public or private, by speech, writing, printing of otherwise, advocates, encourages, justifies, praises or incites:

a. The unlawful burning or destruction of public or private property; or

b. Assaults upon any of the armed forces of the United States, the national guard, or the police force of this or any other state or of any municipality; or

c. The killing or injuring of any class or body of persons, or of any individual --

Is guilty of a high misdemeanor.

The indictment charges that defendant, or or about July 19, 1970, at the City of Newark, did in public, by speech, advocate or encourage assaults on two named police officers, contrary to N.J.S.A. 2A:148-10(b).

Defendant contends that the statute is void for vagueness because it is susceptible of sweeping and improper application, furnishes a convenient tool for harsh and discriminatory

enforcement by local prosecuting officials against particular groups deemed to merit their displeasure, and implicates First Amendment freedoms, since one must guess what conduct or utterances may be punishable. He argues that a vague statute must be declared void because under it the selection of violators will necessarily be arbitrary and based on the personal view of the arresting officer or the philosophy of the court hearing the case and, touching the area of First Amendment activity, a vague statute such as N.J.S.A. 2A:148-10(b), creates a "chilling effect" upon the exercise of First Amendment freedoms by members of the community who oppose the police or their policy.

Defendant's claim of overbreadth is grounded on his view that the statute and indictment sweep far beyond the scope of legitimate governmental regulation into the area of pure speech and thought control. In short, he says that the statute bears the hall mark of a police state. Defendant's final claim is that a statute with all these defects cannot be saved by judicial reconstruction.

Defendant has submitted no statement of facts. It is the position of his counsel that under any conceivable set of facts the statute must be deemed unconstitutional, and that for the purpose of the motion he accepts as true the State's statement of facts. According to a statement provided by the State, the incident out of which the indictment arose occurred during a Puerto Rican Day parade on July 19, 1970, in the vicinity of Newark City Hall. It is contended that as the parade was coming to an end a group of young men who had bottles and bricks at their disposal had reached the area in front of Newark City Hall. Defendant, who was standing among them, began to call to the others in the group, and when he said, "Get those mother fuckers," bricks and bottles began to be hurled at Newark police officers from the area in which defendant was calling, and two police officers were struck by the missiles.

The forerunner of N.J.S.A. 2A:148-10, which was identical in substance with it but slightly ...


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