People v. Milbry

Citation530 N.Y.S.2d 928,140 Misc.2d 476
PartiesPEOPLE of the State of New York, v. Gary MILBRY, Defendant.
Decision Date28 April 1988
CourtNew York City Court

ANGELA MAZZARELLI, Judge:

This case concerns an issue, hitherto unresolved, that has arisen recently in numerous cases in New York City Criminal Court.

The facts are not in dispute. Defendant is an artist who paints floral pastels in the style of Rene Magritte. He does not, and does not claim to have, any license to vend merchandise on the sidewalk in New York City. On June 17, 1987 he was displaying his paintings for the purpose of sale near the New York Library at 42nd Street and Fifth Avenue. He received a desk appearance ticket and was arraigned in Criminal Court on July 8, 1987 on a charge of violating New York City Administrative Code Section 20-453, by vending his paintings without having first obtained a vendor's license from the Department of Consumer Affairs, a class B misdemeanor, punishable by a fine of $1,000 or three months' imprisonment.

Defendant now moves to dismiss on the ground that the Administrative Code section under which he is prosecuted is unconstitutional. The section reads as follows:

20-453 License required. It shall be unlawful for any individual to act as a general vendor without having first obtained a license in accordance with the provisions of this subchapter, except that it shall be lawful for a general vendor who hawks, peddles, sells or offers to sell, at retail, only newspapers, periodicals, books, pamphlets or other similar written matter, but no other items required to be licensed by any other provision of this code, to vend such without obtaining a license therefor.

Defendant argues that this statute, in exempting the vendors of written material from the licensing requirement, discriminates unreasonably against artwork. His theory is that written material and pictorial artwork, being both forms of expression protected by the First Amendment, should be treated identically as far as the requirement for a vendor's license is concerned. Therefore, he finds the licensing exemption's failure to include pictorial artwork is a denial of equal protection of the laws and hence a violation of Article I, section 11 of New York State's Constitution. He includes in this argument the fact that street musicians are not covered at all by this Code section and therefore need not obtain a license to play in the street. This leaves both written and musical individual expression entirely untrammelled whereas pictorial expression is limited by the necessity of a license. Such necessity, moreover, is far from being a mere formality. Although defendant does not allege that the licenses are awarded on any but a first-come, first-served basis, he does allege that the limited number of licenses authorized have already been given out and that none will be available until later this year. He also alleges that the withholding of a license, or, conversely the requirement of a license, is unfairly burdensome as he depends on the public display of his artwork for his exposure and hence his livelihood. Defendant speaks of the Code section as "unconstitutional as applied to him" and would like it invalidated. A conceptually cleaner approach would be to ask that the reading of the exemption be broadened to include paintings and thus bring the section into compliance with the guarantee of equal protection of Article I, section 11 of New York State's Constitution. Since defendant's claim relates to an alleged failure of equal protection of the laws, the court will take this approach in resolving the case. Goodell v. Goodell, 77 App.Div.2d 684, 429 N.Y.S.2d 789 (3d Dept.1980)

The prosecutor argues that artwork is not speech at all, still less the "pure speech" protected by the U.S. Constitution's First Amendment and New York State's Constitution, Article I, Section 8. To him, the sale of paintings is a commercial activity, indistinguishable from the sale of any other object. The validity of the difference in treatment of written material, on the one hand, and pictorial artwork on the other, lies, therefore, in the fact that they do not partake of the quality of pure speech. Since the activity does not fall under the protection of the First Amendment, the court need only look for a rational relationship between the ends to be served and the means adopted to serve them. This relationship the prosecutor finds in the need to control the sidewalk traffic in New York City's streets without burdening unduly the artistic self-expression of its citizens. The artist's freedom of expression is not abridged since he is not prevented from painting or selling his pictures.

Defendant has a heavy burden of persuasion. To begin with, all statutes carry a strong presumption of constitutionality. McKinney's Consolidated Laws of New York Book 1, Statutes Section 150; Farrington v. Pinckney, 1 N.Y.2d 74, 150 N.Y.S.2d 585, 133 N.E.2d 817 (1956). This presumption applies as strongly in the case of municipal ordinances as in the case of statutes. It is presumed that the City Council was in possession of facts that support the ordinances. Wiggins v. Somers, 4 N.Y.2d 215, 173 N.Y.S.2d 579, 149 N.E.2d 869 (1958). Such presumption is particularly strong when, as in the instant case, the ordinance is intended to promote the public health, safety and welfare. Matter of Avon Western Corp. v. Woolley, 266 App.Div. 529, 42 N.Y.S.2d 690 (1st Dep't.1943), aff'd 291 N.Y. 687, 52 N.E.2d 587 (1943). The defendant has the burden of proving the statute unconstitutional beyond a reasonable doubt. People v. Lang, 36 N.Y.2d 366, 368 N.Y.S.2d 492, 329 N.E.2d 176 (1975). Moreover, lower courts and even intermediate appellate courts, deeming such judgments best left to higher courts, are all the more reluctant to find a statute unconstitutional. Lower courts normally do not find a statute unconstitutional barring exceptional circumstances involving life and liberty. National Psychological Assn. v. University of the State of New York, 18 Misc.2d 722, 188 N.Y.S.2d 151 (Sup.Ct., N.Y.Co.1959), aff'd 10 App.Div.2d 688, 199 N.Y.S.2d 423 (1st Dep't 1960), aff'd 8 N.Y.2d 197, 203 N.Y.S.2d 821, 168 N.E.2d 649 (1960). Indeed there is a line of cases that hold that, where the facts are not in dispute, the better practice is to raise the issue of a criminal statute's constitutionality, not in Criminal Court, but by an action for declaratory judgment in Supreme Court, because the latter has the requisite equity jurisdiction. New York Foreign Trade Zone Operators v. State Liquor Authority, 285 N.Y. 272, 34 N.E.2d 316 (1941); Bunis v. Conway, 17 App.Div.2d 207, 234 N.Y.S.2d 435 (4th Dep't 1962); People v. Babylon Transit, 93 Misc.2d 67, 403 N.Y.S.2d 618 (App.Term, 2nd Dep't 1977).

Nonetheless, there is no actual bar to the consideration of this issue by this court, and in the interests of judicial economy, this court will decide the motion on its merits.

To begin with, pictorial artwork, as a form of self-expression, is certainly covered by the guarantee of freedom of speech contained in both the Federal and New York State Constitutions. People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 510 N.Y.S.2d 844, 503 N.E.2d 492 (1986); Duchein v. Lindsay, 42 App.Div.2d 100, 345 N.Y.S.2d 53 (1st Dep't 1973), aff'd 34 N.Y.2d 636, 355 N.Y.S.2d 375, 311 N.E.2d 508 (1974). First Amendment protection is not seriously at issue here.

The phrase "First Amendment", however, is not equivalent to "open sesame". It has been consistently held that a municipal corporation has the right to regulate and license the use of public forums, even with respect to First Amendment activities, as long as the...

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5 cases
  • Bery v. City of New York, 94 Civ. 4253 (MGC)
    • United States
    • U.S. District Court — Southern District of New York
    • 26 d4 Outubro d4 1995
    ...who sold his own paintings of floral pastels in the style of René Magritte on the city sidewalks. See People v. Milbry, 140 Misc.2d 476, 530 N.Y.S.2d 928 (N.Y.City Crim.Ct.1988). In Milbry, the court held that under the test set forth in United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.......
  • People v. Saul
    • United States
    • New York Criminal Court
    • 19 d4 Fevereiro d4 2004
    ...Gillings, 149 Misc 2d 950 [Crim Ct, NY County 1991] [words on albums fall within exception, music alone does not]; People v Milbry, 140 Misc 2d 476 [Crim Ct, NY County 1988] [although artwork is a constitutionally protected form of expression, it may be subjected to greater regulation than ......
  • People v. Saul, 2004 NY Slip Op 24044 (NY 2/19/2004)
    • United States
    • New York Court of Appeals Court of Appeals
    • 19 d4 Fevereiro d4 2004
    ...Gillings, 149 Misc 2d 950 [Crim Ct, NY County 1991] [words on albums fall within exception, music alone does not]; People v. Milbry, 140 Misc 2d 476 [Crim Ct, NY County 1988] [although artwork is a constitutionally protected form of expression, it may be subjected to greater regulation than......
  • People v. Bissinger, AP-9
    • United States
    • New York City Court
    • 24 d1 Outubro d1 1994
    ...expressive activities that ordinarily qualify for First Amendment protection." [Brennan, J., dissenting]; People v. Milbry, 140 Misc.2d 476, 530 N.Y.S.2d 928 (Crim.Ct.N.Y.Co.1988) (summarily rejecting any contention that "pictorial artwork"--floral pastel paintings in the style of Magritte ......
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