People v. Bambino

• Citation: 329 N.Y.S.2d 922,69 Misc.2d 387
• Parties: PEOPLE of the State of New York v. Thomas BAMBINO, Defendant.
• Decision Date: 15 March 1972
• Court: New York County Court

Page 922

329 N.Y.S.2d 922

69 Misc.2d 387

PEOPLE of the State of New York v. Thomas BAMBINO, Defendant.

Nassau County Court, Special Term, Part I.

March 15, 1972.

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

James J. McDonough, Mineola, Attorney in Charge, Legal Aid Society of Nassau County, Crim, Div., for defendant.

DAVID T. GIBBONS, Judge.

By indictment number 32729 dated October 18, 1971, the defendant was charged with Criminal Possession of a Forged Instrument in the Second Degree under the First and Second Counts, and with Loitering under the Third Count.

The defendant now moves for an order (1) to inspect the grand jury minutes, or in the alternative, for an order dismissing the said indictment; (2) challenging the validity of the third count, upon the ground that the Loitering Statute, Penal Law Section 240.35(6) is unconstitutional; and (3) for a search and seizure hearing to suppress from evidence herein certain property, including, but not limited to, certain checks mentioned in the indictment alleged to have been seized by the police in violation of the defendant's constitutional rights. (C.P.L. Article 710).

With respect to defendant's motion for leave to inspect the grand jury minutes, or in the alternative, to dismiss the indictment herein upon the ground that the evidence before the Grand Jury was not legally sufficient to establish the offenses charged in the indictment, or any lesser included offenses (C.P.L. 210.20, subd. 1(b)), the court finds, after reading the grand jury minutes, that the evidence presented is sufficient to sustain the first and second counts of the indictment herein.

Inasmuch as the defendant now challenges the constitutionality of Section 240.35(6) of the Penal Law, the validity of the third count of the indictment charging the defendant with loitering, will now be separately considered.

The defendant is charged in the third count of the indictment with the crime of loitering, as follows:

'The defendant, THOMAS J. BAMBINO, on or about the 13th day of August, 1971, in the County of Nassau, State of New York, did loiter, remain in and about a place without apparent reason and under circumstances which justified suspicion that he may be engaged or about to engage in crime and upon inquiry by a peace officer, the defendant refused to identify himself, to wit: said defendant was observed by a peace officer removing a paper which obscured the license plates of his 1969 Chevrolet automobile bearing registration number 3978MZ'.

The loitering statute (P.L. 240.35 subd. 6) upon which the foregoing third count of the indictment is based, reads as follows: A person is guilty of loitering when he:

6. 'Loiters, remains or wanders in or about a place without apparent reason and under circumstances which justify suspicion that he may be engaged or about to engage in crime, and, upon inquiry by a peace officer, refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes'.

The source of subdivision 6 of Section 240.35 of the Penal Law, is Section 250.6 of the Model Penal Code of the American Law Institute. It was included within the revised Penal Law which became effective in 1967, and since that time its constitutionality has been the subject matter of considerable judicial attention.

This statute was held unconstitutional in People v. Beltrand, 63 Misc.2d 1041, 314 N.Y.S.2d 276, and People v. Villaneuva, 65 Misc.2d 484, 318 N.Y.S.2d 167. It was held constitutional in People v. Strauss, 66 Misc.2d 268, 320 N.Y.S.2d 628, and People v. Taggart, 66 Misc.2d 344, 320 N.Y.S.2d 671.

In People v. Schanbarger, 24 N.Y.2d 288, 291, 300 N.Y.S.2d 100, 101, 248 N.E.2d 16, 17 (1969), the Court of Appeals held it to be unnecessary to pass upon the constitutional question presented in a case where it reversed a conviction for loitering under this statute and dismissed the information because of a substantive deficiency in pleading and proving one of the required 'conjunctive' elements, 'that the circumstances were such that the trooper was justified in suspecting that the defendant might be engaged or was about to engage in crime'.

Similarly, in affirming the dismissal of the charge of loitering in the abovementioned People v. Beltrand (supra), the Appellate Term, First Department, in 67 Misc.2d 324, 324 N.Y.S.2d 477 (1971) relying upon the authority of People v. Schanbarger (supra), declined to pass on the constitutionality of this statute with the following holding:

'There was no proof, on the preliminary hearing, of loitering by defendant for any appreciable period of time. Hence, the testimony was insufficient factually to establish the conjunctive elements of subdivision 6 of section 240.35(6) of the Penal Law. It is therefore unnecessary to deal with defendant's argument that the statute is unconstitutional (People v. Schanbarger, 24 N.Y.2d 288, 300 N.Y.S.2d 100, 248 N.E.2d 16; Rescue Army v. Municipal Ct., 331 U.S. 549, 569, 67 S.Ct. 1409, 91 L.Ed. 1666).'

Against this background of uncertainty in relation to the constitutional validity of this statute due to the several divided opinions of the courts, the defendant herein, by this motion, attacks the loitering count of this indictment by challenging the constitutionality of Section 240.35, subdivision 6.

The court approaches the determination of this question with a full awareness that under People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205 (1969), 'There is a strong presumption that a statute duly enacted by the Legislature is constitutional', and 'that in order to declare a law unconstitutional, the invalidity of the law must be demonstrated beyond a reasonable doubt. (Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 541)'. See also, McKinney's Consolidated Laws of New York annotated, Statutes, Book 1, § 150.

In viewing this matter, the court finds at the outset, that Section 240.35, subd. 6, of the Penal Law is adequately pleaded in the indictment, and, further, an examination of the grand jury minutes reveals sufficient evidence to support the loitering allegation of this indictment.

Thus, the court is now squarely confronted with the constitutional question which is of substantive proportions, going directly to the heart of the matter herein. If the statute is valid, the motion must be denied. If it is deficient in complying with constitutional standards, it is as if the facts alleged in the loitering count constitute no crime under P.L. 240.35(6).

Consideration must now be given to the legal impact upon the subject statute by the principle of law expressed by the Supreme Court of the United States in Papachristou et al. v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (Decided 2/24/72), in which a unanimous bench in an appeal involving five consolidated cases, the Jacksonville, Florida vagrancy ordinance was struck down as unconstitutional.

To determine this question it would be useful at the outset to consider the structure and composition of the enactment now under constitutional attack.

Section 240.35, subdivision 6 of the Penal Law, was characterized by the Court of Appeals in People v. Schanbarger (supra) to be composed of several 'clauses which are conjunctive rather than disjunctive', and under the scheme of its enactment, 'in order to sustain a conviction under it, Each of the conjunctive elements must be proved beyond a reasonable doubt'.

An examination of the statute reveals that it was structured to embrace the following components.

The first element required to be established is that the defendant 'loiters, remains or wanders in or about a place without apparent reason * * *'.

The second requirement of the statute is that the foregoing 'loitering' activity of the first element be committed 'under circumstances which justify suspicion that he may be engaged or about to engage in crime'.

The third element mentioned is that the defendant 'upon inquiry by a peace officer, refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes'.

When measured against the constitutional standards established by the Supreme Court in Papachristou, the question presented is how do the abovementioned 'conjunctive elements' of this statute score?

Comparable to the language of the first conjunctive element of Penal Law Section 240.35, subd. 6, which provides, 'Loiters, remains or wanders in or about a place without apparent reason * * *', the Jacksonville ordinance, after listing those against whom it is directed, states: 'Persons wandering or strolling around from place to place without any lawful purpose or object'.

The latter phraseology of the Jacksonville ordinance was stricken down in Papachristou as in violation of the Fourteenth due process of law amendment of the United States Constitution, because of vagueness and not sufficiently clear and positive as to give an unequivocal warning to the citizen of the rule which is to be obeyed.

Referring to this portion of the Jacksonville ordinance, Justice Douglas, writing for the Supreme Court in Papachristou held:

'This ordinance is void-for-vagueness, both in the sense that it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute', U.S. v. Harriss, 347 U.S. 612, 617, 74 S.Ct., 808, 98 L.Ed. 989, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.

Living under a rule of law entails various suppositions, one of which is that 'All (persons) are entitled to be informed as to what the State commands or forbids'. Lanzetta v. N.J., 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888.

Lanzetta is one of a well-recognized group of cases insisting that the law give fair...