Constitutional challenge to N.Y. riot law fails

One way to challenge your criminal conviction is to argue that the law under which you were prosecuted is too vague and that you were not on notice that your actions fell under its provisions. The Second Circuit has rejected that challenge in the context of the New York statute prohibiting riot in the first degree.

The case is Ortiz v. N.Y.S. Parole, decided on November 10. Ortiz was convicted of riot in the first degree in connection with a riot outside Central Park which broke out after the Puerto Rican Day Parade in 2000. The decision outlines some disgusting assaults against women by various rioters. As the Second Circuit (Kearse, Livingston and Sack) sets out in the opinion, Ortiz was present when the riot started, but he claimed he left the scene before some of the riotous behavior continued. He was charged under the riot law for these acts, and the criminal court judge said that "once one joins a riot, [a] person remains criminally liable for the conduct set in motion until he makes substantial effort to end the conduct." In other words, with limited exceptions, if you help start the riot, you are responsible for whatever happens afterward by anyone else who participated in the riot. The jury charge stems from the statute, which reads:

A person is guilty of riot in the first degree when (a) simultaneously with ten or more other persons he engages in tumultouous [sic] and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing public alarm, and b) in the course of and as a result of such conduct, a person other than one of the participants suffers physical injury or substantial property damage occurs.

The argument here is that, in violation of the U.S. Constitution, the statute does not clearly set out that you are responsible for the consequences of the riot that you helped to create. In ruling against Ortiz on his initial appeal, the state appellate court said that "the riot statute permits a riot participant to be held criminally liable for the acts of other participants, in the course of the same continuing riot, even after his or her participation may have terminated."

As federal courts defer to the state courts' interpretation of its criminal statutes, Ortiz loses his habeas corpus challenge. The fact that this was the first time an appellate court in New York interpreted the riot law this way does not mean that the state judges unreasonably applied constitutional principles in ruling against him. It is true that the Supreme Court has said that "due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." But, under Second Circuit caselaw, it is also true that "due process is not ... violated simply because the issue is a matter of first impression." Here, since the state appellate courts' interpretation of the riot law "was not so unexpected and indefensible as to deprive Ortiz of fair notice," the adverse ruling was not unreasonable and therefore does not support his habeas petition. The conviction stands.