Opinion
July 18, 1990
Appeal from the Criminal Court of the City of New York, Richmond County, Rose McBrien, J.
Matthew J. Chachere, Peter Weiss, Sara E. Rios and Robert L. Boehm for appellants.
William L. Murphy, District Attorney (Karen Fisher McGee and Jonathan L. Silbermann of counsel), for respondents.
MEMORANDUM.
Judgments of conviction affirmed.
The record establishes that the defendants scaled a fence containing signs warning against trespass and entered a naval facility under construction on Staten Island. They did so in protest against nuclear weapons which they thought would be aboard vessels entering the port when the facility was completed.
As they did in the court below, defendants maintain that their actions fell within the purview of the justification defense set forth in section 35.05 Penal of the Penal Law. They also contend that they are immune from prosecution because their protest was protected by the constitutional guarantee of free speech. Neither contention has any merit.
The alleged danger which was the subject of the protest lacked the requisite immediacy and the action taken cannot be deemed reasonably calculated to avoid it (see, United States v Dorrell, 758 F.2d 427; United States v May, 622 F.2d 1000, cert denied 449 U.S. 984). Nor can the defendants claim international or humanitarian law as a basis of justification. They cite no provision prohibiting the possession of nuclear weapons and the so-called "Nuremberg defense" is unavailable to them (see, United States v Montgomery, 772 F.2d 733). Turning to the issue of freedom of speech, the fact that the facility involved was Government owned does not guarantee access for First Amendment purposes (United States Postal Serv. v Greenburgh Civ. Assns., 453 U.S. 114, 129). On the contrary, the Government has the power to insure that its property is used "for the use to which it is lawfully dedicated" (Adderley v Florida, 385 U.S. 39, 47, reh denied 385 U.S. 1020). The guarantee of free speech attaches to those premises which "have traditionally served as a place for free public assembly and communication of thoughts by private citizens" (Greer v Spock, 424 U.S. 828, 838). A military facility, such as the one involved here, clearly does not qualify as such a location (see, Greer v Spock, supra).
Finally, with respect to the alleged denial of defendants' statutory right to a speedy trial, the record reveals that defendants only sought to dismiss the information in the event trial did not commence on December 19, 1988. Since the trial did, in fact, begin on that date, any violation of CPL 30.30 was waived (cf., People v Jordan, 62 N.Y.2d 825).
We find no merit to defendants' remaining contentions.
MONTELEONE, J.P., WILLIAMS and SANTUCCI, JJ., concur.