People on Complaint of Follar v. Finkelstein

• Decision Date: 27 March 1963
• Parties: The PEOPLE of the State of New York On the Complaint of Patrolman Edward FOLLAR v. Hyman FINKELSTEIN.
• Court: New York City Court

Page 835

239 N.Y.S.2d 835

38 Misc.2d 791

The PEOPLE of the State of New York On the Complaint of

Patrolman Edward FOLLAR v. Hyman FINKELSTEIN.

Criminal Court of the City of New York, Kings County, Part 2B.

March 27, 1963.

Edward S. Silver, Dist. Atty., by Peter Mirto, Asst. Dist. Atty., for the People.

Reuben E. Gross, Staten Island, for defendant.

Before GOLDSTEIN, P. J., and SHALLECK and TIERNEY, JJ.

AARON F. GOLDSTEIN, Presiding Judge.

The defendant is charged with a violation of Section 2147 of the Penal Law, known as the Sabbath or Blue Laws.

On the trial, the police officer testified and the defendant conceded, that on Sunday, November 4, 1962, at about 1:05 P.M., he sold two quarts of milk, a loaf of bread, two bars of soap and some canned food to a customer; and that he sold milk, bread, corn flakes and crackers to another customer. The defendant further testified that he was a scrupulously religious man of the Hebrew Faith and that he keeps as his holy time, the period from sunset on Friday to darkness on Saturday, during which time he is restrained by the commandments of his religion from performing any labor or work, which includes buying and selling. The defendant went on further to testify that he operates a one man grocery store at 495 Atkins Avenue, Brooklyn which is his sole source of income by which he supports himself, his wife and three children. He is forty-three years of age and has no capital for another business. He has no education nor training for some other vocation or profession. He tried working at a factory for nine months in order to learn shirt-making, at which he received $28.00 or $29.00 per week. He then tried operating a chicken farm for seven years, but when that proved unprofitable he entered the grocery business which he presently operates and has operated for three years. This business supplies him with a bare existence, from which he nets approximately $85.00 per week. His Sunday business accounts for about $35.00 of his net income. There was other testimony in the case by the Police Officer to the effect that defendant's keeping his grocery store open on Sunday did not offend others in the Community who practiced a different religious belief.

On the testimony, the Court finds as a fact, that this defendant cannot survive economically without conducting business on Saturday after sundown and Sunday. Pursuing this practice of keeping open on Sunday, necessarily involved the defendant in a violation of a Penal Law Statute.

For the law to compel the defendant to be open on Saturday involves the State in transgressing this defendant's Constitutional right to 'The free exercise and enjoyment of religious profession and worship, without discrimination or preference' Art. 1, Sec. 3, N.Y.Const. (Emphasis added.) The First Amendment of the Federal Constitution, too, by virtue of the 14th Amendment, now limits the State from interfering with the free exercise of religion, (Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601). Where, as here, a statute collides with a Constitutional right, it is elementary that the statute must fall.

This Court does not intimate by this decision that this statute (Sec. 2147 of the Penal Law) is unconstitutional. The contrary has been held by authority--which we are powerless to question (People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184). Likewise, a similar statute has been held consistent with the U. S. Constitution by the Supreme Court of the United States in (Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563).

Under Section 2147 of the Penal Law, it is not a defense that the defendant observes as a Sabbath, a day other than Sunday; nor that persons who observe Sunday, as their Sabbath, are not offended by the defendant's sales during prohibited hours on Sunday, and such Statute is constitutional (People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184, appeal dismissed 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; People on Complaint of Powell v. Oser, 9 Misc.2d 585, 170 N.Y.S.2d 277; People v. Kupprat, 6 N.Y.2d 88, 188 N.Y.S.2d 483, 160 N.E.2d 38.)

The defendant urges 'economic coercion' as a defense and he relies heavily on the case of Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563, contending that it inferentially holds that a Sabbath Law, as applied to an Orthodox Jew, is unconstitutional if he is not capable of supporting his family in some other commercial activity which does not call for work on Saturdays and Sundays. The aforesaid statement is dicta only and that contention is not actually supported by that case. The decision therein is to the contrary.

Perhaps, if the present learned Supreme Court of the United States had the opportunity, at this time, on the facts in this case, it would hold unconstitutional an edict which heretofore was held constitutional, as it did in June 1962, in the case of Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601, supra, wherein the Court enunciated a proposition of law, which up to that time was constitutional. The question to be determined in the instant case is 'How can a Sabbath observer be a Sabbath violator?'

This Court is, indeed, sympathetic to the plight of the defendant, yet this Court may not sit in review of the discretion of the Legislature in exercising its constitutional powers nor can the Court overlook the established law on this subject by our Appellate Courts. The Legislature having created this law, the defendant should, and others similarly situated, address their plea of hardship to the Legislature. This Court may not usurp the functions of the Legislature. A trial court may only adjudicate, it cannot legislate (United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234; Peo. v. Friedman, 302 N.Y. 75, 96 N.E.2d 184; Peo. v. Kupprat, 6 N.Y.2d 88, 188 N.Y.S.2d 483, 160 N.E.2d 38, supra).

The Court decries the unfortunate position in which the defendant and others similarly situated find themselves. It is aware too, of the hardship imposed upon one who scrupulously seeks to follow the commandments of his religion, profession and belief. It is for that reason that the Court subscribes to the sentiments reflected in the dissenting opinion of Judge Shalleck. Unfortunately, these sentiments are not supported by the law. A hopeful trend now appears on the legislative horizon that may bring about a change in the present legal complexion of the existing Sabbath Law in our State. This Judge, having heretofore served as a member of the Legislature, and as far back as the years 1934, 1935 and 1936, and again in 1940 and 1941, sought to amend the law, because of the hardships it imposed upon the devoutly religious, most respectfully recommends to that august Body, the urgency for the abolition of this Section in its present form, so that the scrupulously religious of any faith be in a position to follow their religious commandments without interference from law enforcement agencies, and certainly without 'economic coercion'. This would be in consonance with the constitutional prescription assuring to all, the 'free exercise and enjoyment of religious profession and worship, without discrimination or preference'.

The defendant's motion to dismiss the Information is denied and the defendant is found guilty.

RAYMOND A. TIERNEY, Judge.

I concur with my colleague, Judge GOLDSTEIN, on the ground that a Court may only adjudicate but not legislate.

MILTON SHALLECK, Judge (dissenting).

'[L]aws and institutions must go hand in hand with the progress of the human mind.' (15 The Writings of Thomas Jefferson, Memorial edition, 1904, p. 41). And if the Fourteenth Amendment to the United States Constitution (the 'free exercise' clause) 'has had unsettling effects on many customs and practices', specifically in reference to the First Amendment (the 'establishment' clause), it is 'a process consistent with Jefferson's precept'. ¹

Have the courts adopted this Jeffersonian principle? In the main, yes. Most times it has been a long, frustrating and not infrequently belittling battle of attrition to effect important changes; for the law is a jealous guardian of fundamental stability in human relations. But an equally forceful tenant is that the courts should mold the law to conform to the growing needs and changing mores of the people who must obey the laws, or the balance of observance must necessarily become weighted on the side of defiance. This has a most unsettling effect on community order, as has been historically proved on many occasions. Unless laws have the sanction of the people they must be repealed; ² or they fall into discard and obsolescence because they cannot be enforced equitable or equally. ³

How does all this equate with the case before us? It concerns only a small grocer who made two minor sales of household staples; but the principle involved transcends that individual. The concern is that of the many, vis-a-vis the 'Sabbath' or 'Sunday' or 'the Lord's day' law, as it is variously referred to. Specifically here involved is the generally 'excepted' provision in New York (§ 2147 of the Penal Law) entitled 'Public Traffic on Sunday'. ⁴ It was held to be constitutional twelve years ago by our Court of Appeals (People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184) and the United States Supreme Court dismissed a further appeal to that court for its failure to present a substantial constitutional question (341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345). More recently the Supreme Court reviewed the Sabbath laws of the States of Maryland, Massachusetts and Pennsylvania. Hundreds of pages of opinions, majority, concurring and dissenting, were written (McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Gallagher v. Crown Kosher Super Market of Mass., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536; Two Guys from Harrison-Allentown Inc., v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; Braunfeld v....