People v. Block

Decision Date26 October 1972
Citation71 Misc.2d 714,337 N.Y.S.2d 153
PartiesPEOPLE of the State of New York v. Jerome BLOCK and Ronald C. Stewart.
CourtNew York County Court

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

Bracken & Sutter, Mineola, for defendants.

BERNARD TOMSON, Judge.

This is a 'massage parlor' case where the female employees of the defendants were alleged for a fee to have manipulated the private parts of male customers to climax. The defendants urge that the acts do not violate the Prostitution Article of the Penal Law (Penal Law, art. 230) and that the Prostitution Article itself is unconstitutionally vague.

Defendants were indicted for 3 counts of promoting prostitution in the second degree (P.L. § 230.25). The first count of the indictment charged the defendants with violation of Penal Law § 230.25(1) which states:

'A person is guilty of promoting prostitution in the second degree when he knowingly: 1. Advances or profits from prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes; . . .'

The second and third counts of the indictment charged the defendants with violating Penal Law § 230.25(2) which states:

'A person is guilty of promoting prostitution in the second degree when he knowingly: * * * 2. Advances or profits from prostitution of a person less than nineteen years old.'

At the end of the non-jury trial, defendant, Ronald Stewart, was found guilty on all three counts of the indictment, and defendant Jerome Block was found guilty on the second and third counts.

Defendants raised two issues during the trial that merit further elaboration. The first relates to the constitutionality of Penal Law § 230.00 et seq., and the second requires a determination as to the quantum of corroboration required for conviction for promoting prostitution.

Penal Law § 230.00 states:

'A person is guilty of prostitution when such person engages or agrees or offers to engage in Sexual conduct with another person in return for a Fee.' (Emphasis supplied).

Defendants maintain that this definition section is unconstitutional and thereby attack the entire Prostitution Article. In particular, the defendants urge the term 'sexual conduct' is impermissibly vague.

In attacking the constitutionality of the statute, the person making such challenge must first overcome the presumption of constitutionality. (Nettleton Co. v. Diamond, 27 N.Y.2d 182, 315 N.Y.S.2d 625, 264 N.E.2d 118; People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202; Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 229 N.E.2d 426; People v. Byron, 17 N.Y.2d 64, 268 N.Y.S.2d 24, 215 N.E.2d 345; Matter of Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539; Knapp v. Fasbender, 1 N.Y.2d 212, 151 N.Y.S.2d 668, 134 N.E.2d 482; Farrington v. Pinckney, 1 N.Y.2d 74, 150 N.Y.S.2d 585, 133 N.E.2d 817; McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 150). Additionally, a court of first impression should not set aside a statute as unconstitutional unless that conclusion is inescapable. (Bohling v. Corsi, 204 Misc. 778, 127 N.Y.S.2d 591, aff. 306 N.Y. 815, 118 N.E.2d 823; McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 150).

'Sexual conduct' is not further defined in Penal Law Art. 230; it is, however, defined in other articles of the Penal Law. Penal Law § 235.20(3) defines 'sexual conduct' as

'. . . acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast.'

(See also P.L. § 245.10(2) defining 'sexual conduct' in similar language).

In 1965 when Penal Law § 484--h was amended 'sexual conduct' was also defined as:

'. . . acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, public area, buttocks or, if such person be a female, breast.'

In that same year, 1965, the present Penal Law was enacted. Although the present Penal Law Art. 230 does not define 'sexual conduct' (nor does Penal Law Art. 130) its meaning may be ascertained from reading the definition given in former Penal Law § 484--h and elsewhere in the Penal Law.

Under the present Penal Law, 'sexual conduct' is defined exactly the same way as it was defined in former Penal Law § 484--h. (see P.L. § 235.20 added by the Laws of 1967, ch. 791 and P.L. § 245.10 added by the Laws of 1971, ch. 962, defining 'sexual conduct').

Dictionary definitions do not conflict with the conclusion reached. Webster's New International Dictionary of the English Language (2d Edition, Unabridged (1947) at page 2297) defines 'sexual' as 'pertaining to the use or abuse of sex functions, appetites, etc.; as, Sexual morality'. The Oxford Universal Dictionary (3rd Ed. Revised with Addenda (1955) at page 1859) defines 'sexual', as '3. Relative to the physical intercourse between the sexes Or the gratification of sexual appetites, as s. Morality, excess, etc. 1878.' (Emphasis supplied) 'Conduct' is defined in Penal Law § 15.00(4) and made applicable to the entire Penal Law, as '. . . an act or omission and its accompanying mental state.' Oxford Universal Dictionary, supra, at page 365 defines 'conduct' as '4. Manner of conducting oneself or one's life; behavior. (Now the leading sense). 1673.'

'Fee' is not defined anywhere in either the Penal Law or the C.P.L. However, based on Penal Law § 5.00 and McKinney's Statutes § 94, this word must be given its obvious and natural meaning.

Webster's New International Dictionary of the English Language (Second Edition--Unabridged (1947) at page 928 defines 'fee' as:

'Compensation, often a fixed charge, for Professional service or for special and requested exercise of Talent or of Skill, as by an artist; as a Fee for consultation; a retaining Fee.' (Emphasis supplied).

Corpus Juris Secundum devotes three pages to various definitions of the word 'fee'. It is variously defined as:

'compensation to Professional men, a remuneration for services rendered in the line of their Professions'; 'recompense for official or Professional services'; and 'reward, compensation, or wage given to one for the performance of Professional services.' ('Fee', 36A C.J.S. pp. 248--249). (Emphasis supplied).

The fair import of the word 'fee' then is payment in return for Professional services rendered. It is not intended facetiously to point out here that prostitution has long been euphemistically known as 'the oldest profession'. 'Fee' in Penal Law § 230.00 can fairly be said to connote professionalism. It restricts the purview of the statute. For example, it would eliminate the situation (suggested by the defendants) of a wife who withholds the performance of her conjugal duties unless her husband gives her a mink coat. It further defines and limits the type of behavior the Legislature intended as criminal.

Penal Law § 235.20 states that the definition of 'sexual conduct' applies to Penal Law § 235.21 and Penal Law § 235.22. However, there is no proscription in Penal Law § 235.20 to applying that definition to other sections of the Penal Law. (The same is also true of Penal Law § 245.10).

'Where the same word or group of words is used in different parts of the same statute there is a presumption that the Legislature intended to convey the same conception each time; and in the absence of anything indicating a contrary intention the same meaning will be attached to the similar expressions.' (McKinney's Statutes § 236 p. 401; People v. Gates, 56 N.Y. 387; Howell v. Mills, 53 N.Y. 322).

This is true even if the statute is composed of many sections:

'. . . whenever a word is used in a statute in one sense and with one meaning, and subsequently the same word is used in a statute on the same subject matter, it is understood as having been used in the same sense, unless there is something in the context or nature of things to indicate that a different meaning was intended.' (McKinney's Statutes § 236 at p. 402).

There is nothing in Penal Law Art. 230 to indicate that a different meaning for 'sexual conduct' was intended.

It seems clear that the definitions found in Penal Law Arts. 235 and 245 are also applicable to Penal Law Art. 230. (Note that the term 'sexual conduct' without further definition is found also in Penal Law Art. 130 (see P.L. § 130.00(2) and P.L. § 130.00(3)).

Penal Law § 5.00 provides that the provisions of the statute are to:

'. . . be construed according to the fair import of their terms to promote justice and effect the objects of the law.'

Statutory language should be interpreted according to its natural and obvious meaning. (McKinney's Statutes § 236).

The United States Supreme Court has stated:

". . . (T)he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . ." (Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1 L.Ed.2d 1498).

Penal Law § 130.00(2) which defines 'deviate sexual intercourse' as

'. . . Sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva.' (Emphasis supplied).

This definition indicates that the Legislature was using 'sexual conduct' in its ordinary sense but limiting its scope for 'deviate sexual intercourse'. (Cf. People v. Blodgett, 37 A.D.2d 1035, 326 N.Y.S.2d 14 where the Court rejected the argument that the term 'intimate parts', (P.L. § 130.00(3)) is unconstitutionally vague; People ex rel. Farr v. Mancusi, 70 Misc.2d 830, 335 N.Y.S.2d 161, where the term 'carnally knows' found in former Penal Law § 690 was held not unconstitutionally vague.)

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    ...of the Penal Law can fairly be said to connote professionalism. It restricts the purview of the statute.' ") (quoting People v. Block, 71 Misc.2d 714, 337 N.Y.S.2d 153, 157 (Cty. Ct. Nassau Cty.1972)); id. at 945-46 (observing prostitution's "commercial aspect of sex for a fee"). 183 See Me......
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    ...in exchange for a fee are guilty. 8 Undoubtedly, a marital exemption exists for the crime of prostitution (People v. Block, 71 Misc.2d 714, 716, 337 N.Y.S.2d 153, supra ). 9 This exemption violates equal protection unless some ground of difference exists to rationally explain the different ......
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    ...75 S.Ct. 35, 99 L.Ed. 634; People v. Pagnatta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202 (1969); People v. Block, 71 Misc.2d 714, 715, 337 N.Y.S.2d 153 (1972). Accordingly, this motion to suppress, is denied. 1 Here the warrant was signed not by a Judge of this Court, but ra......
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2 books & journal articles
  • Sex Work
    • United States
    • Georgetown Journal of Gender and the Law No. XXIII-2, January 2022
    • January 1, 2022
    ...v. Oanes, 543 N.W.2d 658, 661 (Minn. Ct. App. 1996) (determining breasts to be “intimate parts” under common law); People v. Block, 337 N.Y.S.2d 153, 156 (N.Y. Ct. Cl. 1972). 40. See Commonwealth v. Bleigh, 586 A.2d 450, 452–53 (Pa. Super. Ct. 1991) (stating that “self-masturbation for hire......
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    • United States
    • Georgetown Journal of Gender and the Law No. XXIV-2, January 2023
    • January 1, 2023
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