Fenster v. Leary

• Decision Date: 07 July 1967
• Citation: 229 N.E.2d 426,20 N.Y.2d 309,282 N.Y.S.2d 739
• Parties: , 229 N.E.2d 426, 25 A.L.R.3d 784 Charles FENSTER, Appellant, v. Howard R. LEARY, as Commissioner of Police of the City of New York Respondent, and Louis J. Lefkowitz, Attorney General of the State of New York, Intervenor-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 739

282 N.Y.S.2d 739

20 N.Y.2d 309, 229 N.E.2d 426, 25

A.L.R.3d 784

Charles FENSTER, Appellant, v. Howard R. LEARY, as Commissioner of Police of the City of New York Respondent, and Louis J. Lefkowitz Attorney General of the State of New York, Intervenor-Respondent.

Court of Appeals of New York.

July 7, 1967.

Emanuel Redfield, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Joel Lewittes and Samuel A. Hirshowitz, New York City, of counsel), intervenor-respondent, in his statutory capacity under section 71 of the Executive Law.

No appearance for respondent.

BURKE, Judge.

On three occasions in late 1964, each about a month apart, the plaintiff, Charles Fenster, was arrested by the New York City police and charged with violation of subdivision 1 of section 887 of the Code of Criminal Procedure (New York's vagrancy statute). Fenster was charged under the language of this section with being 'a person who, not having visible means to maintain himself, lives without employment'. Following each arrest he was acquitted of the violation charged, but conviction on such charges would have subjected him to possible imprisonment for up to six months. (Code Crim.Proc. § 892.)

The record does not indicate why this plaintiff was singled out for such treatment by the police, especially in the face of previous acquittals, but Fenster, apparently concerned at the likelihood of further arrests on this same charge, sought, following his third arrest, an order in the nature of prohibition against the Criminal Court of the City of New York barring that court from hearing and determining the charge of vagrancy levelled against him following his third arrest. In this action he attacked the constitutionality of the statute, but prohibition was denied in our lower courts, and in this court the decisions below were affirmed on the sole ground that the remedy of prohibition was discretionary (Matter of Fenster v. Criminal Ct. of City of N.Y., 17 N.Y.2d 641, 269 N.Y.S.2d 139, 216 N.E.2d 342).

After our decision in this earlier action and following his third acquittal on this vagrancy charge, plaintiff applied to a three-Judge Federal court in the Southern District of New York for a declaration of the statute's unconstitutionality. This was denied on the ground that plaintiff had a State remedy by way of an application to the New York courts for a declaratory judgment (D.C., 264 F.Supp. 153), and the United States Supreme Court affirmed (see 386 U.S. 10, 87 S.Ct. 862, 17 L.Ed.2d 701).

Plaintiff next initiated the present action seeking declaratory relief in the Supreme Court, New York County (LUPIANO, J.). He is again before this court on a direct appeal from the judgment of the Supreme Court, at Special Term, denying his motion for summary judgment declaring subdivision 1 of section 887 unconstitutional and dismissing his complaint. He urges that we at last strike down this law.

Plaintiff's appeal is appealable directly to this court as the sole question raised and decided below and the sole issue on this appeal is the constitutionality of subdivision 1 of our vagrancy statute (see CPLR 5601, subd. (b), par. 2) and declaratory relief of the kind here sought is available in our courts under the circumstances here presented (see Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 271 N.Y.S.2d 947, 218 N.E.2d 668).

Plaintiff's arguments against the constitutionality of this statute are as follows: (1) It interferes with and impairs the liberty of a citizen to exercise his faculties so long as he does not interfere with others; (2) it requires involuntary servitude in violation of the Thirteenth Amendment; (3) it denies plaintiff the equal protection of the laws; (4) it imposes cruel and unusual punishment on a person because of his status; and (5) it deprives plaintiff of his privileges and immunities guaranteed by the Federal Constitution.

We are in agreement with plaintiff that subdivision 1 of section 887 of the Code of Criminal Procedure is unconstitutional, on the ground that it violates due process and constitutes an overreaching of the proper limitations of the police power in that it unreasonably makes criminal and provides punishment for conduct (if we can call Idleness conduct) of an individual which in no way impinges on the rights or interests of others and which has in no way been demonstrated to have anything more than the most tenuous connection with prevention of crime and preservation of the public order (on which ground the Attorney-General would have us sustain the statute), other than, perhaps, as a means of harassing, punishing or apprehending suspected criminals in an unconstitutional fashion. We do not reach any of the other arguments for invalidity urged by plaintiff.

The crime of common-law vagrancy, which is what subdivision 1 of our statute involves, contains three elements: (1) being without visible means of support, (2) being without employment, and (3) being able to work but refusing to do so. (See Note, The Vagrancy Concept Reconsidered, 37 N.Y.U.L.Rev. 102, 109.) In a more homely fashion our statute has been described as directed against the 'loafer or lazy man, the one who hangs about streets and public places without employment or visible means of support when he could with effort obtain something to do.' (People v. Sohn, 269 N.Y. 330, 334--335, 199 N.E. 501, 502.) Such statutes have their origins in feudal laws aimed against runaway serfs and the English 'poor laws' (See Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1; Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv.L.Rev. 1203; Note, The Vagrancy Concept Reconsidered, 37 N.Y.U.L.Rev. 102) and were originally designed as a means of regulating the economic life of the populace. The modern emphasis or stated justification for retaining such laws has shifted, however, to the prevention or control of crime and common-law vagrancy remains a crime in virtually all American jurisdictions. (See, e.g., Lacey, op. cit., supra; Note, The Vagrancy Concept Reconsidered, supra.)

As a number of commentators have observed, common-law vagrancy, in contrast to most other crimes recognized in our law, is not defined in terms of an Act or Acts but in terms of a Status or Condition of being (see, e.g., Lacey, op. cit., supra, p. 1203). The essential element of this crime, as well as of other Status crimes, is 'the accused's having a certain personal condition or being a person of a specified character.' (Ibid.) Other crimes of Status would include 'gangster statutes' (such as was involved in Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888) or statutes making it criminal to be a narcotics addict (such as was involved in Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758). Under our own section 887 a number of other 'personal conditions' are declared to make one a vagrant and thus subject to imprisonment, e.g., that of being a prostitute or panderer (§ 887, subd. 4) or of being a beggar on the public ways (§ 887, subd. 5). Such statutes cannot stand if they would make criminal a condition, such as one resulting from illness, over which the accused has no control (Robinson v. State of California, supra; see, also, People v. Sohn, supra) or if the class of persons coming within their ambit is so vaguely defined as to make it unclear to potential violators just what conduct will subject them to criminal liability and what will not (Lanzetta v. State of New Jersey, supra). Such constitutional problems would not appear to be directly involved in the instant case however, as under our Sohn decision (supra) it seems clear that physical or even Psychological inability to work would bar conviction as a vagrant and plaintiff does not appear to attack the statute as void for vagueness (for which reason we need not reach this point). Another constitutional problem, of major proportions, does, however, appear in this case, namely, whether our statute constitutes a valid exercise of the police power.

Initially, it must be observed that a strong presumption of validity attaches to statutes and that the burden of proving invalidity is upon those who challenge their constitutionality to establish this beyond a reasonable doubt (see Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 209 N.E.2d 539, and the cases cited therein), but it must likewise be noted that a statute whose effect is to curtail the liberty of individuals to live their lives as they would and whose justification is claimed to lie in the exercise of the police power of the State must bear a reasonable relationship to, some proportion to, the alleged public good on account of which this restriction on individual liberty would be justified. As Judge FULD (as he was then) observed in People v. Bunis, 9 N.Y.2d 1, 4, 210 N.Y.S.2d 505, 507, 172 N.E.2d 273, 274, 'The police power is 'very broad and comprehensive' and in its exercise 'the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other', * * * But, in order for an exercise of the police power to be valid, there must be 'some fair, just and reasonable connection' between it and the promotion of the health, comfort, safety and welfare of society'.

The Attorney-General of New York, appearing...