Fenster v. Leary

• Decision Date: 14 May 1967
• Citation: 53 Misc.2d 774,279 N.Y.S.2d 743
• Parties: Charles FENSTER, Plaintiff, v. Howard R. LEARY, as Commissioner of Police of the City of New York, Defendant.
• Court: New York Supreme Court

Page 743

279 N.Y.S.2d 743

53 Misc.2d 774

Charles FENSTER, Plaintiff, v. Howard R. LEARY, as Commissioner of Police of the City of New York, Defendant.

Supreme Court, Special Term, New York County, Part I.

May 14, 1967.

Louis J. Lefkowitz, Atty. Gen. (Joel Lewittes, New York City, of counsel), for intervenor.

Emanuel Redfield, New York City, for plaintiff.

J. Lee Rankin, Corp. Counsel, City of New York, for defendant.

VINCENT A. LUPIANO, Justice.

Plaintiff moves for summary judgment. He relies on his complaint alone. He purports to say that the police believed him to be a vagrant, that he was arrested on charges of vagrancy and has quickly sustained dismissals thereof, and that Code of Criminal Procedure, section 887(1) is unconstitutional. He seeks judgment declaring the statute repugnant to the United States Constitution and enjoining the defendant, his agents and assistants from arresting or prosecuting him under that statute. His counsel's appeal is eloquent and scholarly.

Plaintiff alleges he was arrested and acquitted of a charge of vagrancy on September 30, 1964 and again on November 13, 1964. A third arrest was made on December 14, 1964. There was suspension of that prosecution and plaintiff was finally acquitted on June 27, 1966. Prior thereto, unconstitutionality was charged in a proceeding in the Supreme Court, State of New York, County of Kings, which this plaintiff instituted against the Criminal Court (46 Misc.2d 179, 259 N.Y.S.2d 67, aff'd, 24 A.D.2d 840, 263 N.Y.S.2d 1010, aff'd, 17 N.Y.2d 641, 269 N.Y.S.2d 139, 216 N.E.2d 342. Motion for reargument denied, 17 N.Y.2d 918, 272 N.Y.S.2d 1027, 218 N.E.2d 920). At Special Term the proceeding was in the nature of prohibition to prohibit the Criminal Court from hearing and determining the case. The petition was dismissed on the ground that since the statute was not, on its face, unconstitutional, the plaintiff had failed to show a clear legal right to the relief requested. The lower court stated:

'(T)he statute under consideration here does not limit a person's rights merely on the basis of his property status or on the basis of mere unemployment and consequently is not the kind of statute inveighed against in the Edwards case.' (Matter of Fenster v. Criminal Court, 46 Misc.2d 179, at 183, 259 N.Y.S.2d 67, at 72).

The Court of Appeals affirmed on the ground that the remedy was in the discretion of the Court below. No other question was reached.

As noted, prosecution of the third charge resulted in dismissal on June 27, 1966. Two days later, with the purpose of declaring the statute as repugnant to the constitution and to enjoin its enforcement plaintiff instituted an action against this defendant in the Federal jurisdiction. Plaintiff applied for a three-judge court based on the substantiality of his claim, and a three-judge court was convened. Relief was denied on the ground of abstention, leaving the matter to State jurisdiction for the remedy of declaratory judgment. He appealed and the matter went to the United States Supreme Court where there was affirmance on February 13, 1967 (386 U.S. 10, 87 S.Ct. 862, 17 L.Ed.2d 701).

The instant action for the same relief as sought in the District Court was instituted on February 20, 1967. Issue was joined by the service of an answer on March 13, 1967.

The subject statute provides:

'Section 887. Who are vagrants.

'The following persons are vagrants:

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

The statute was construed in People v. Sohn, 269 N.Y. 330, 334--335, 199 N.E. 501 as follows:

'We think this is what our statute does mean when the words 'vagrants,' 'visible means of support' and 'without employment' are used. Long usage has fixed their significance. These words, taken together, indicate that the thing aimed at is 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. It would be absurd to say that one physically unable to work or an able-bodied person who could not get work came within the meaning of this section.'

Plaintiff argues the statute is used as a pretext for unlawful detention of persons before the commission of a crime, a cheap substitute for prosecution of more specific offenses. Inferentially then, at least the statute provides punishment for offense. Yet, plaintiff concedes that the statute was pronounced invulnerable to attack in his first action against the Criminal Court. And unless the exercise of police power is demonstrated to offend constitutional prohibition, it must be sustained as a valid exercise of legislative power.

Due process, plaintiff says, is denied since plaintiff has been deprived of the liberty which has been protected by the Fourteenth Amendment and which affords him the opportunity to pursue his life as he sees fit so long as he does not harm or interfere with others. As stated in People ex rel. Stolofsky v. Superintendent of State Institution, etc., 259 N.Y. 115, 118, 181 N.E. 68, 69:

'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. * * * there came to be a class of ablebodied vagrants who supported themselves by preying on society and thus threatened the public peace and security.'...