State v. Hamilton4/5/2004
t any time, including prior to trial in municipal court. R. 7:7-1. They chose not to do so, relying instead on the technical argument that the complaints misdescribed the true location of the offenses. In fact, defendants knew precisely that which they were called upon to defend.
Moreover, defendants' contention that defiant trespass cannot as a matter of law be committed on the right-of-way of a public road is simply incorrect. The statute itself recognizes no such limitation. In State v. Brennan, 344 N.J. Super. 136 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002), we upheld a conviction for defiant trespass in a public building. While there may be some public areas so traditionally devoted to use as a public forum that only a very unusual set of circumstances would permit a successful prosecution for defiant trespass, the right-of-way of a public road in a suburban, perhaps rural, area is not such a public forum. See, e.g., Paff v. Kaltenbach, 204 F.3d 425, 433 (3d Cir. 2000) (determining that a sidewalk was a non-public forum permitting greater governmental restrictions on First Amendment activity); State in Interest of L.E.W., 239 N.J. Super. 65, 75 (App. Div.), certif. denied, 122 N.J. 144 (1990) (stating that in the face of actual notice, the public nature of privately-owned property makes no difference to a trespass charge if constitutional rights are not impaired). And, although the present case has never been defended explicitly as a First Amendment case, that is the implicit thrust of defendants' claim that demonstrators cannot legally trespass on a public right-of-way. In State v. Schmid, 84 N.J. 535 (1980), the Court addressed the parameters of First Amendment activity on the grounds of Princeton University. Although Schmid's trespass conviction was overturned, the Court noted:
The public's right to exercise its freedom of speech does not mandate unrestricted access to university facilities. Even with respect to public property, the public's use of that property for First Amendment activity may be restricted, if not actually prohibited. See, e.g., Adderley v. Florida, 385 U.S. 39, 47, 87 S. Ct. 242, 247, 17 L. Ed. 2d 149, 155-156 (1966) (public may be prohibited from demonstrating on the grounds of county jail); American Future Systems, Inc. v. Pennsylvania State Univ., 618 F.2d 252, 255 (3 Cir. 1980) (state university regulation forbidding sales demonstrations and solicitation in university-owned and operated residence halls is constitutional); Wolin v. Port of New York Auth., 392 F.2d 83, 94 (2 Cir. 1968), cert. den., 393 U.S. 940, 89 S. Ct. 290, 21 L. Ed. 2d 275 (1968) (regulations may limit public's use of public property for expressional activity to ensure that that activity does not interfere with the use to which the property is dedicated).
[Id. at 567, n.12.]
Circumstances can readily be hypothesized where public property is subject to legitimate restrictions. If the police cordon-off a street because a public official is passing, or the occurrence of an accident, or a terroristic threat, certainly anyone on notice of such restriction who knowingly violates it can be subject to a charge of trespass even if the violator is exercising First Amendment rights. In State v. Lashinsky, 81 N.J. 1 (1979), a press photographer failed to heed a police officer's order to move away from an automobile accident on the Garden State Parkway. The photographer was properly convicted of violating N.J.S.A. 2A:170-29(2)(b), which rendered any person who" bstructs, molests, or interferes with any person lawfully therein..." a disorderly person. Writing for the Court, Justice Handler stated:
Courts are attuned to gauge the reasonableness of a policeman's a
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