Fenster v. Criminal Court of City of New York

• Decision Date: 31 March 1965
• Parties: Petition of Charles FENSTER, Petitioner, for a Judgment of Prohibition v. The CRIMINAL COURT OF the CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court

Page 67

259 N.Y.S.2d 67

46 Misc.2d 179

Petition of Charles FENSTER, Petitioner, for a Judgment of Prohibition v. The CRIMINAL COURT OF the CITY OF NEW YORK, Respondent.

Supreme Court, Special Term, Kings County, Part I.

March 31, 1965.

Emanuel Redfield, New York City, for petitioner.

Louis J. Lefkowitz, Atty. Gen., for respondent. Joel Lewittes, Asst. Atty. Gen., New York City, of counsel.

M. HENRY MARTUSCELLO, Justice.

Petitioner in this Article 78 proceeding seeks an order prohibiting respondent court from trying him on a vagrancy charge pending before it on the ground that the law under which the prosecution was brought is on its face unconstitutional and therefore the respondent is without jurisdiction over the subject matter. Respondent cross-moves to dismiss the petition on objections in point of law pursuant to the provisions of CPLR 7804(f).

Petitioner was arrested and charged with vagrancy under subdivision 1 of section 887 of the Code of Criminal Procedure. Said statute reads as follows:

'Section 887. Who are vagrants.

'The following persons are vagrants.

'1. A person who not having visible means to maintain himself, lives without employment.'

Petitioner alleges that within two months of said arrest he was twice arrested and charged with the same offense, and that both charges were subsequently dismissed; that he has thus been subjected to three arrests and prosecutions under said vagrancy law within three successive months and has been put to considerable expense each time in raising bail and for counsel fees and has been subjected to unnecessary imprisonment including night confinement while awaiting arraignment.

Petitioner takes the position that the above quoted subdivision 1 offends the Thirteenth and Dourteenth amendments of the Federal Constitution in that it: (1) unreasonably restricts him in his personal liberty; (2) is vague and uncertain; (3) subjects him to involuntary servitude; (4) denies him equal protection of the law; and (5) deprives him of the privileges and immunities guaranteed by the Constitution. The contention that said subdivision was vague and uncertain was withdrawn by petitioner after the argument of the motion.

Respondent in support of its cross motion contends, among other grounds, that prohibition may not be invoked here since petitioner may challenge the constitutionality of the statute in question upon the trial or by appeal in the event of an adverse verdict. The availability of other means of redress does not preclude prohibition where the aggrieved party otherwise has a clear right to invoke such remedy (Matter of Hogan v. Court of General Sessions of New York County, 296 N.Y. 1, 68 N.E.2d 849; Matter of Murtagh v. Leibowitz, 303 N.Y. 311, 101 N.E.2d 753; Kraemer v. County Court of Suffolk County, 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633; Matter of Nolan v. Court of General Sessions, 15 A.D.2d 78, 222 N.Y.S.2d 635, affd. 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751). An unconstitutional law is void and an offense created by it is no crime (Ex parte Siebold, 100 U.S. 371, 377, 25 L.Ed. 717). Hence, if the statute under attack here is on its face unconstitutional, prohibition may be employed to restrain respondent from attempting to exercise jurisdiction which it plainly does not possess since the charge pending before it constitutes no crime. (Cf. Zucker v. Bloch, 24 Misc.2d 1008, 204 N.Y.S.2d 1018.) On the other hand, if petitioner does not have a clear right to the relief he seeks, then he should be relegated to employing the usual procedures and remedies available to him (People ex rel. Burbank v. Wood, 21 App.Div. 245, 47 N.Y.S. 676).

People ex rel. Stolofsky v. Superintendent of State Institution, etc., 259 N.Y. 115, 118, 181 N.E. 68, 69, states the historical background and purpose of the vagrancy statutes as follows:

'The background of all vagrancy statutes has been unemployment and pauperism with their incidental evils. The problem involved, simple at first, became more difficult with the increasing complexity of social organization. In addition to the impotent poor who are unable to support themselves, there came to be a class of able-bodied vagrants who supported themselves by preying on society and thus threatened the public peace and security. The former were dealt with by charity; the latter had to be and were dealt with by the criminal law. Cf. 4 Holdsworth's History of English Law, 388, 389. The statutory history of the subject in this state discloses the same problem and the same method of dealing with it. The Act of February 9, 1788 (1 R.L. 114 [Van Ness & Woodworth, 1813 Ed.]) differs but little in substance from the present statute. * * *'

The long and ancient history of the vagrancy laws is no guarantee of their constitutionality. Every statute, however, is presumed to be constitutional and every intendment is in favor of its validity (Farrington v. Pinckney, 1 N.Y.2d 74, 78, 150 N.Y.S.2d 585, 591, 133 N.E.2d 817, 821); and courts of the first instance should not exercise transcendent power of declaring an act of the legislature unconstitutional except in rare cases where life and liberty are involved and invalidity of the act is apparent on its face (National Psychological Ass'n for Psychoanalysis, Inc. v. University of State of New York, 18 Misc.2d 722, 726, 188 N.Y.S.2d 151, 156, affd. 10 A.D.2d 688, 199 N.Y.S.2d 423, affd. 8 N.Y.2d 197, 203 N.Y.S.2d 821, 168 N.E.2d 649, appeal dismissed 365 U.S. 298, 81 S.Ct. 691, 5 L.Ed.2d 688).

People v. Gillespi, 15 N.Y.2d 529, 254 N.Y.S.2d 121, 202 N.E.2d 565, upholds the constitutionality of section 887 of the Code of Criminal Procedure with respect to subdivision 7 thereof, which deals with disguising one's identity. But no case has been cited, and independent research has revealed none, where the constitutionality of subdivision 1 was directly raised and passed upon. However, the Law Revision Commission of this state, in reporting on a study of the provisions of the vagrancy statute (Legislative Document [1935], No. 60[K], p. 34-35; N.Y. Law Rev. Comm., 1935, pp. 620-621) made the following statement:

'Section 887(1) of the Code of Criminal Procedure is broader in defining as a vagrant 'a person who, not having visible means to maintain himself, lives without employment.' The constitutionality of this subdivision of the New York statute is none too clear. It would not be held void for indefiniteness, since the term 'without visible means of support' is the classical phrase employed in vagrancy statutes in almost every state, and has so often been construed that its meaning is well-defined. An objection that might be urged, however, is that it deprives the accused of due process in punishing mere idleness. It penalizes a state of being which the accused may, in times of unemployment, be helpless to remedy. The New York law, unlike the statutes upheld in Ex parte Strittmatter and Ex parte Karnstrom, does not require any act such as 'loitering' or 'wandering' to accompany the state of being without visible means of support. In sustaining the validity of the statute prohibiting 'tramping or wandering from place to place' without visible means of...