Cherry v. Koch

• Decision Date: 06 April 1987
• Citation: 514 N.Y.S.2d 30,126 A.D.2d 346
• Parties: Fred CHERRY, et al., Appellants-Respondents, v. Edward I. KOCH, etc., et al., Defendants-Respondents, Elizabeth Holtzman, etc., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 30

514 N.Y.S.2d 30

126 A.D.2d 346

Fred CHERRY, et al., Appellants-Respondents, v. Edward I. KOCH, etc., et al., Defendants-Respondents Elizabeth Holtzman, etc., Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

April 6, 1987.

Ronald L. Kuby and William M. Kunstler, New York City, for appellants-respondents (one brief filed).

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter A. Weinstein and Rosalyn H. Richter, of counsel), respondent-appellant pro se.

Before BRACKEN, J.P., and WEINSTEIN, SPATT and HARWOOD, JJ.

PER CURIAM.

In this case, the plaintiffs seek a judgment declaring Penal Law §§ 230.00 and 230.03 unconstitutional as applied to them insofar as those sections declare illegal private commercial sex between consenting adults. These statutes prohibit prostitution and the patronizing of prostitutes, respectively. The plaintiff Margo St. James claims to be a prostitute, and the plaintiff Fred Cherry claims to be a patron of prostitutes. We hold that the plaintiffs have not presented a justiciable issue, and, therefore, we do not reach the issue of the statutes' constitutionality.

Preliminarily, the cross appeal by the defendant Elizabeth Holtzman is dismissed because she is not aggrieved by Special Term's order which granted her complete relief by dismissing the plaintiffs' complaint (see, CPLR 5511; Parochial Bus Systems v. Board of Educ., 60 N.Y.2d 539, 544-545, 470 N.Y.S.2d 564, 458 N.E.2d 1241; Mareno v. University of State of N.Y. Agric. & Tech. Coll. at Farmingdale, 101 A.D.2d 828, 829, 475 N.Y.S.2d 485). Nevertheless, the defendant Holtzman may raise the question of the plaintiffs' standing to sue in support of her argument in favor of affirmance of the order and judgment appealed from (see, CPLR 5501[a][1]; Parochial Bus Systems v. Board of Educ., supra, 60 N.Y.2d at p. 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241; Blum v. Stone, 127 A.D.2d 549, 511 N.Y.S.2d 638).

The Supreme Court, Kings County (Hirsch, J.), first addressed the sufficiency of the complaint in an order dated October 22, 1984, from which no appeal was taken. In that order, Special Term denied the defendant's motions to dismiss the complaint on the ground that the plaintiffs lacked standing to bring this suit but dismissed the complaint for failure to state a cause of action. The court ruled that the complaint was insufficient because it failed to describe with adequate specificity "where and under what circumstances " the plaintiffs had engaged and intended to continue engaging in their alleged acts of prostitution and of patronizing prostitutes.

The plaintiffs subsequently served an amended verified complaint upon the defendants. The amended verified complaint alleged that the plaintiff Margo St. James is a resident of the States of New York and California, is a "prostitute by choice" and desires to practice this occupation while she resides in New York. It further alleged that she had previously engaged in acts of prostitution in Kings County at her residence or at the residences of her clients. She contacted her clients at private parties, private clubs or over the telephone. Finally, it is stated that she "intends to continue to engage in prostitution, as above described, in Kings County". Nowhere in the amended verified complaint is it alleged that St. James has been arrested or prosecuted, or threatened with prosecution, in connection with her prostitution activities. Nor does she allege any facts from which it could be rationally inferred that she has a reasonable fear of being threatened with arrest or prosecution in the future in connection with her prostitution activities. Further, she does not assert that the criminalization of prostitution by Penal Law § 230.00 has inhibited or deterred her from engaging in acts of prostitution in Kings County.

The amended verified complaint alleges that the plaintiff Fred Cherry is an adult resident of Kings County, New York, who suffers from a medical condition known as "malabsorption syndrome" or "celiac disease" which results in his being extremely fatigued and emaciated. As a consequence of this medical condition, it is claimed, Cherry has been unable to have normal social contacts which could lead to his meeting nonprostitute women and developing sexual relationships with them. As a result, it is averred, he has had to rely on women prostitutes for sexual gratification.

In an affidavit annexed to the amended verified complaint, Cherry describes several specific instances in the past when he has patronized prostitutes in Kings County and in New York County. In all cases, his solicitation of these prostitutes took place in private residences or privately owned clubs or by telephonic communications, and his sexual activity with them has always taken place in private residences.

Similar to St. James, Cherry does not claim that he has ever been arrested or prosecuted in connection with the above-described activities. Nor does he assert any facts from which it could be inferred that he has a reasonable fear that he will be threatened with prosecution in the future. Finally, he does not claim that the criminalization of patronizing prostitutes by Penal Law § 230.03 has inhibited or deterred him from engaging in those activities. In this regard, the last specific time it is alleged he engaged in these activities was in 1980.

The legal claim asserted in the amended verified complaint is that Penal Law §§ 230.00 and 230.03 violate the plaintiffs' rights to privacy, due process and equal protection guaranteed under the Federal and State Constitutions, and they requested a judicial declaration to this effect. The Supreme Court, Kings County (Adler, J.), inter alia, granted the defendants' motions to dismiss the complaint for failure to state a cause of action. Special Term stated that, under the doctri of the "Law of the Case", it was precluded from reconsidering Justice Hirsch's prior determination that the plaintiffs had standing to bring this suit or that there was a justiciable controversy.

In its decision, Special Term set forth a test to determine whether a cause of action for a declaratory judgment challenging the constitutionality of a criminal statute has been stated. An examination of that test reveals that it was, in effect, one designed to ascertain whether a complaint seeking a declaration that a criminal statute is unconstitutional sets forth a justiciable controversy. Special Term concluded that the plaintiffs' complaint failed to satisfy this test and, thus, did not state a cause of action for a declaratory judgment. Thus, while Special Term stated it was not going to re-examine the question of justiciability, in reality, it did so. Further, even if it had actually declined to re-examine the question of justiciability on the ground that it was barred from doing so by Justice Hirsch's prior decision under the doctrine of the law of the case, we are not so barred (see, Gray v. Sandoz Pharmaceuticals, 123 A.D.2d 829, 507 N.Y.S.2d 444; Zappolo v. Putnam Hosp. Center, 117 A.D.2d 597, 498 N.Y.S.2d 66), and, in fact, are compelled to address this threshold issue. Special Term also extensively commented on the merits of the plaintiffs' claims as to the unconstitutionality of the statutes under attack and concluded that they passed constitutional muster.

We agree that the plaintiffs failed to state a cause of action for declaratory relief. It is fundamental that in order to establish a cause of action for a declaratory judgment, a plaintiff must present a justiciable controversy (CPLR 3001; see also, Matter of New York State Inspection, Security & Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233, 238-239, 485 N.Y.S.2d 719, 475 N.E.2d 90; Travelers Ins. Co. v. Diamond, 50 A.D.2d 845, 846, 377 N.Y.S.2d 110, appeal dismissed, 39 N.Y.2d 802, 385 N.Y.S.2d 759, 351 N.E.2d 426, denied 40 N.Y.2d 803, 387 N.Y.S.2d 1030, 356 N.E.2d 482; Goldfeld v. Mattoon Communications Corp., 99 A.D.2d 711, 712, 472 N.Y.S.2d 6). In this case, the plaintiffs' complaint does not set forth any real and substantial controversy between themselves and the defendants. In an action seeking a declaration that a criminal statute is unconstitutional, in order to establish the existence of an actual controversy, the plaintiffs must show that either they have in fact been arrested, prosecuted or threatened with prosecution under this statute or that they, at least, have some reasonable fear, which is not purely "imaginary" or "speculative", that they will be prosecuted under this statute in the future (see, Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895, quoting fro Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669; J.N.S., Inc. v. State of Ind., 7th Cir., 712 F.2d 303, 305; see also, McCollester v. City of Keene, N.H., 1st Cir., 668 F.2d 617, 620). In this case, the plaintiffs do not allege that they have ever been arrested, prosecuted or threatened with prosecution under either Penal Law §§ 230.00 or 230.03, and any fear which they might have of future prosecution appears to be totally speculative. At the very best, the plaintiffs have alleged a hypothetical future controversy which is not yet ripe for adjudication (see, Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 523, 505 N.Y.S.2d 24, 496 N.E.2d 183, cert. denied 479...