People v. Balmuth

• Decision Date: 12 August 1998
• Citation: 178 Misc.2d 958,681 N.Y.S.2d 439
• Parties: , 1998 N.Y. Slip Op. 98,632 The PEOPLE of the State of New York, Plaintiff, v. Mitchell BALMUTH, Defendant. The People of the State of New York, Plaintiff, v. Patrick Christiano, Defendant. The People of the State of New York, Plaintiff, v. Gilbert Oh, Defendant.
• Court: New York City Court

Page 439

681 N.Y.S.2d 439

178 Misc.2d 958, 1998 N.Y. Slip Op. 98,632

The PEOPLE of the State of New York, Plaintiff, v. Mitchell BALMUTH, Defendant.

The People of the State of New York, Plaintiff, v. Patrick Christiano, Defendant.

The People of the State of New York, Plaintiff, v. Gilbert Oh, Defendant.

Criminal Court of the City of New York New York County.

Aug. 12, 1998.

Eric Greenbush, New York City (Carol Novack of counsel), for Mitchell Balmuth, defendant.

Diana Heller, New York City, for Patrick Christiano, defendant.

Sean Sullivan, New York City, for Gilbert Oh, defendant.

Robert M. Morgenthau, District Attorney of New York County, New York City (William Beesch and Michael Lynch of counsel), for plaintiff.

LUCY BILLINGS, Judge.

In each of these cases, which the court has consolidated for decision, the court is called upon to determine whether the City of New York may require permits for artists displaying and selling their art, books, or other written materials in or near a City park. This regulation of expressive activity requires an examination of the interplay among governing City statutes, the constitutional freedoms implicated, and prior federal court decisions on similar issues.

In each of these cases the people have charged defendant artists with violating a New York City Department of Parks and Recreation regulation, 56 R.C.N.Y. § 1-05(b), which proscribes unlawful vending:

No person in any park, or street adjacent to or abutting a park (including all public sidewalks of such abutting streets) shall sell, offer for sale, hire, lease or let anything whatsoever, except under and within the terms of a permit, or except as otherwise provided by law.

Department of Parks and Recreation regulation 56 R.C.N.Y. § 1-03(b)(1), governing permits, provides further that:

When any provision of these Rules requires a permit as a condition to the performance of an act or activity, no such act or activity shall be implemented or commenced prior to the receipt of written authorization from the Commissioner or from his authorized representative.

New York City Charter § 533, governing the powers and duties of the Commissioner of the Department of Parks and Recreation, makes any violation of these regulations a misdemeanor triable by the Criminal Courts of New York City and punishable by up to 90 days in jail and a fine of up to $1,000. N.Y.C. Charter § 533(a)(9).

The accusatory instruments charging each of defendants with violating 56 R.C.N.Y. § 1-05(b) allege that they were selling their artwork or books or displaying these items for sale on Department of Parks property without a permit or authorization from the Department. In the cases of defendants Balmuth and Christiano, the location of the offense is 993 5th Avenue, at 81st Street, New York County, in front of the Metropolitan Museum of Art. In defendant Oh's case, the location is 5th Avenue at 59th Street. New York City Charter § 533(a)(5) gives the Commissioner of the Department of Parks the power and duty to "regulate the use of ... all streets and avenues lying within any park ... or within a distance of three hundred fifty feet from the outer boundaries thereof."

Defendants have moved to dismiss the charges under 56 R.C.N.Y. § 1-05(b) on the grounds that, on its face or as applied, the regulation is contrary to the federal or state constitution, city statutes, or federal court orders. For purposes of these motions, defendants do not dispute that they were selling their artwork or books or displaying these items for sale, without Department of Parks authorization, on Department of Parks property, in front of the Metropolitan Museum of Art or elsewhere within the Department's regulatory authority. In any event, for purposes of the motions to dismiss, the court will accept the allegations of the accusatory instruments as true. N.Y.Crim.Proc.Law §§ 100.40(1)(c); 170.35(1)(c). For the reasons discussed below, the court grants the motions. The court concludes that no license, permit, or similar authorization requirement may be imposed on persons displaying or selling written materials, including artwork, in public spaces.

I. THE PLEADINGS

In support of their motions, defendants themselves affirmatively allege that they are artists or writers who display and sell their works on the west side of 5th Avenue, including in front of the Metropolitan Museum of Art. Although Patrick Christiano is charged with selling "books," he characterizes his works as "illustrated poetry," a combination of visual art and literature.

In the cases of Mitchell Balmuth and Patrick Christiano, the people have responded with an affirmation from an Assistant Counsel for the Department of Parks. In the case of Gilbert Oh, the people have not responded. In the Balmuth and Christiano cases, however, the people do not dispute these facts alleged by defendants. The people rely primarily on the decision in Lederman v. Giuliani, 1998 WL 186753 (S.D.N.Y. 1998), in which Mitchell Balmuth and other artists attempting to sell their art in front of the Metropolitan Museum of Art are plaintiffs.

There the court denied the plaintiffs' motion for a preliminary injunction against the Mayor of the City of New York, the City, its Department of Parks and Recreation, and other City agencies and officials, to enjoin enforcement of 56 R.C.N.Y. § 1-05(b) pending final disposition of that action. The federal district court determined that plaintiffs were not likely to succeed on the merits of their claim that the regulation's enforcement violates the First Amendment to the United States Constitution.

The people, citing Lederman v. Giuliani, allege that enforcement of 56 R.C.N.Y. § 1-05(b) against defendants is designed " 'to serve the government's interest in preserving the essential character of the City's parks and keeping the parks and perimeter sidewalks safe and free of congestion.' " Aff. of Anastasia Greenebaum, Esq., at 2 (quoting Lederman v. Giuliani, slip op. at 9). Ms. Greenebaum attributes the Department's permit requirement specifically for sales of art in front of the Metropolitan Museum of Art to "impending construction at the Met, and ... an effort to maintain a more orderly atmosphere in front of this landmark institution." Greenebaum Aff. at 3.

II. THE COLLATERAL ESTOPPEL EFFECT OF THE FEDERAL COURT'S PRELIMINARY INJUNCTION DECISION

As a threshold matter, this court must determine the collateral estoppel effect of the recent decision in Lederman v. Giuliani, at least as to Mitchell Balmuth, who was a party there. Particularly in criminal cases, the courts are reluctant to extend collateral estoppel to any persons who were not actually parties in the prior litigation. People v. McGriff, 130 A.D.2d 141, 149, 518 N.Y.S.2d 795 (1st Dep't 1987). For collateral estoppel to be applied in subsequent criminal cases, (a) the parties in the prior and subsequent cases must be identical, and (b) the party to be estopped from relitigating a claim must have had a full and fair opportunity in the prior case to litigate the precise issue involved in the subsequent case. People v. Goodman, 69 N.Y.2d 32, 38, 511 N.Y.S.2d 565, 503 N.E.2d 996 (1986); People v. Sailor, 65 N.Y.2d 224, 228, 491 N.Y.S.2d 112, 480 N.E.2d 701 (1985); People v. McGriff, 130 A.D.2d at 149-50, 518 N.Y.S.2d 795.

A. The Parties in Lederman v. Giuliani and in Mitchell Balmuth's Case Here Are Sufficiently Identical for Collateral Estoppel to Apply.

As stated, in Lederman v. Giuliani, 1998 WL 186753 (S.D.N.Y. 1998), Mitchell Balmuth is a plaintiff, but neither of the other two defendants here is a party there. There the defendants are the Mayor of the City of New York, the City, its Department of Parks and Recreation, and other City agencies and officials, but not the People of the State of New York or any State officials or entities.

The rule that requires the parties to be identical for collateral estoppel to apply is not so ironclad as to preclude the doctrine's application where the "parties are so closely related that they may be deemed as one." People v. McGriff, 130 A.D.2d at 150, 518 N.Y.S.2d 795. See also People v. Berkowitz, 50 N.Y.2d 333, 344-45, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980); People ex rel. Dowdy v. Smith, 48 N.Y.2d 477, 482, 423 N.Y.S.2d 862, 399 N.E.2d 894 (1979). Similarly, the doctrine may apply where the parties' identity is wholly irrelevant to the issue to which estoppel is to be applied. People v. McGriff, 130 A.D.2d at 152, 518 N.Y.S.2d 795.

The fact that defendants Christiano and Oh are alleged to have been selling their works or displaying them for sale along 5th Avenue, on Department of Parks property, without authorization from the Department is not enough to identify them with Mitchell Balmuth and the other plaintiffs in Lederman v. Giuliani. As discussed below, the real, viable issue here is the legality of the challenged regulation as applied to defendants, not its facial validity. Therefore the court cannot ignore the possible disparities in proof, in availability of evidence, or in defenses that might be dependent on the unique facts of each application of the regulation to each defendant. These differences conceivably could impact on or alter a determination as to whether the regulation was applied properly to them. People v. McGriff, 130 A.D.2d at 151-52, 518 N.Y.S.2d 795.

As to Mitchell Balmuth, the party opposing him here, the People of the State of New York, is closely enough related to the party opposing him in Lederman v. Giuliani that the court may consider the parties identical. People v. Berkowitz, 50 N.Y.2d at 344-45, 428 N.Y.S.2d 927, 406 N.E.2d 783; People ex rel. Dowdy v. Smith, 48 N.Y.2d at 482, 423 N.Y.S.2d 862, 399 N.E.2d 894; People v. McGriff, 130 A.D.2d at 150, 518 N.Y.S.2d 795. In both cases, the parties opposing Mr. Balmuth are the parties enforcing the regulation he challenges. The court cannot conceive of how any differences in the identity of these...