People v. Bissinger, AP-9

• Citation: 163 Misc.2d 667,625 N.Y.S.2d 823
• Decision Date: 24 October 1994
• Docket Number: AP-9
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Norbert BISSINGER, Defendant
• Court: New York City Court

Page 823

625 N.Y.S.2d 823

163 Misc.2d 667

The PEOPLE of the State of New York, Plaintiff, v. Norbert BISSINGER, Defendant.

Criminal Court of the City of New York,

New York County, Part AP-9.

Oct. 24, 1994.

Legal Aid Soc., New York City (Robert M. Baum and Lorraine Maddalo, of counsel), for defendant.

Robert M. Morgenthau, Dist. Atty. of New York County (David Stampley, of counsel), for plaintiff.

DYNDA L. ANDREWS, Justice.

On October 3, 1993, at the corner of West 46th Street and Broadway, defendant was arrested while taking photographs of people who paid him to do so in front of the painted backdrop which defendant provided. When a police officer asked defendant how much he charged, defendant reportedly said "Five dollars." He was then arrested for unlicensed general vending, an unclassified misdemeanor specified in New York City Administrative Code § 20-453 ¹ and failing to display an appropriate tax certificate. ²

The less-than-felicitously worded complaint charged defendant based on

the [arresting police sergeant's] ... observ[ation of] the defendant display[ing] and offer[ing] for sale souvenir photos. Specifically, the officer saw defendant standing for approximately 3 minutes immediately next to a back drop cloth with camera and the above-described merchandise [ sic] was spread out for sale thereon. ^{[ 3}

Defendant was the only person who was uninterruptedly in immediate proximity to the merchandise and did not leave the merchandise unprotected during the entire period of the officer's observation.

The officer approached defendant and asked the price of the merchandise and defendant said [$]5.00 per photo taken in front of "back drop" cloth taped to building.

At the end of the February hearing before this judge on defendant's motion to suppress physical evidence seized from defendant--apparently the backdrop and camera--defendant argued that his activities were an "artistic expression" protected by the first amendment of the United States constitution and provisions of the New York constitution, and sought dismissal of the complaint. The case was adjourned for briefing on the first amendment issue and any other issues raised by the hearing.

The prosecutor and defendant have briefed the issues of whether the photographs are constitutionally protected "expression" which cannot be impermissibly regulated; and whether the photographs are vendable merchandise within the scope of regulation by the charged Administrative Code § 20-453.

Defendant first urges that his photographic compositions ("the art or process of producing images ... on film", Webster's Ninth New Collegiate Dictionary, page 885 [9th ed. 1983], and his "street performance" to obtain "festive" combinations of his cut-outs and backdrops with persons--in particular tourists--who seek photographs at a particular New York City location, are protected "expression", citing Massachusetts v. Oakes, 491 U.S. 576, 591, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) ("Photography, painting, and other two-dimensional forms of artistic reproduction ... are plainly expressive activities that ordinarily qualify for First Amendment protection." [Brennan, J., dissenting]; People v. Milbry, 140 Misc.2d 476, 530 N.Y.S.2d 928 (Crim.Ct.N.Y.Co.1988) (summarily rejecting any contention that "pictorial artwork"--floral pastel paintings in the style of Magritte in the case in question--was not covered by the state and federal constitutional guarantees of freedom of expression).

Before the court reaches any constitutional question, the much narrower issue of whether defendant's activities are comprehended and regulable by the vendor licensing provisions must be answered.

Are Defendant's Activities Covered by the Cited

Administrative Code Provisions?

Defendant urges that the unlicensed vending restrictions do not apply to his activities, since he is engaged in a "street performance" and that for which he charges five dollars (including but not limited to the photograph memorializing the performance) is neither goods or services, nor "part and parcel" of what a general vendor may "sell or lease" as provided in the statute.

Contrary to the prosecutor's argument, defendant is not selling or vending a simple photography service on the street; he is not merely offering to take "snapshots of passersby". From everything that can be gathered from the defense and prosecution descriptions of defendant's activities, he does not simply point and snap a shutter on his own or anyone else's camera at any location for any passerby willing to pay five dollars. Defendant is not involved in providing the equivalent of a shoe shine or sharpening shears.

Further, the physical portion of what defendant sells--memorialization of his individually posed and stylized performances--is not easily comprehended in the Administrative Code definitions of "goods" or "wares". Since the photographs do not exist until after defendant has completed his performance, and since they are all different, they are not "souvenir photographs" of the Statue of Liberty or the World Trade Center.

The photograph that is a part of any particular performance cannot be "displayed" or "spread out" for viewing by any potential customer because it does not exist. Indeed, the arresting officer apparently concedes that nothing was "displayed" or "spread out" for viewing or sale.

Defendant compares his activities to those of a street musician or mime, because these types of activities involve no "possession of wares" or "stock of goods on display". In contrast to an artist selling his stock of artworks, defendant's "photographs do not exist until a customer requests their creation ... [t]hey are not on display, or even in his possession ... [h]e is not their owner". (Defendant's brief at 16; compare, People v. Milbry, supra, at 480, 530 N.Y.S.2d 928 [distinguishing a seller of original paintings from street musicians, who are only "hopeful of contributions, (and) are not, strictly speaking, selling anything and are not in possession of wares."]

On this narrow nonconstitutional basis, the complaint must be dismissed. Defendant simply does not fit the definition of a "general vendor" contained in the statute (Administrative Code § 20-452), nor do his "products" fit the statutory language of "goods" or "services", Admin.Code § 20-452. ⁴ There is no basis for the court to find probable or reasonable cause to believe that defendant was "peddling", "hawking", "selling" or otherwise "vending" any kind of "merchandise", "goods" or "services".

Are Defendant's Photographs "Protected Expression"?

Assuming arguendo that the activity in this case fell within the Administrative Code framework, the court would also have to reject the arguments of the prosecutor in this case that, while some photographs or similar artwork may "qualify as artistic [and therefore protected] expression", defendant's "snapshots of passersby willing to pay defendant five dollars" do not rise to the level of "art". (Prosecutor's Brief, p. 6). There is no elucidation of this distinction by the prosecutor, nor any real discussion of why the prosecutor believes that, to be protected by the first amendment, "expression" need be "art".

Defendant urges that his endeavors are "protected expression" in two respects; he posits that he is simultaneously engaged in "street performance art" in composing and orchestrating the photographs in an entertaining manner, and in "graphic representational art", in photographing these compositions. The prosecutor summarily dismisses the possibility that "art" or other protected expression might have dual character and purposes, and dual particularized messages; the prosecutor characterizes defendant's claimed purposes and messages as "conflicting" in an unspecified way.

While defendant's street performing and photographic endeavors may never be displayed in the Metropolitan or any other museum or formal forum for the display of "art", defendant has clearly shown that his expressive purpose is, using backdrops and cut-outs, to (1) perform for any audience which wishes to see, hear and/or participate, and (2) produce and memorialize what he characterizes as a "festive" and "joy[ous]" figurative and literal "picture" of New York City for tourists and others, "in contrast to the cold, indifferent, rushing masses that often occupy our streets and heighten a visitor's negative impression of our city." (Defendant's brief, p. 18).

There are two forms of expression, defendant urges, in his photographic recordation of "a unique artistic ... confluence of ... live photo subjects, whose actions are both directed and spontaneous ... cut-outs and backdrops ... of locations ... and the sights and sounds of the city."

Many might share the prosecutor's lack of "artistic" appreciation for this particular expression and/or message; many might disdain defendant's "performance" and "art" as "hokey" or "touristy" or worse. Nevertheless, neither defendant's photographic endeavors, nor the sale of them, ⁵ are outside the protection of either state or federal first amendment protection of expression.

Defendant's activities, being "expression" (whether or not they are "art"), are constitutionally protected. See, e.g., People v. Milbry, 140 Misc.2d 476, 530 N.Y.S.2d 928 (Crim.Ct.N.Y.Co.1988).

Are the Administrative Code Provisions Reasonable Time,

Place and Manner Restrictions?

Again assuming arguendo that defendant's activities constitute a "service" and/or involve vending "goods" or "wares", contrary to this court's determination, supra, the regulation here challenged is also not reasonably limited as to the time, place and, in particular, the manner of defendant's expression. To be reasonable, such restrictions must be content-neutral, "narrowly tailored to serve a significant governmental interest", and "leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109...