People v. Bright

• Decision Date: 17 February 1988
• Citation: 71 N.Y.2d 376,526 N.Y.S.2d 66,520 N.E.2d 1355
• Parties: , 520 N.E.2d 1355, 56 USLW 2499 The PEOPLE of the State of New York, Appellant, v. Paul BRIGHT, Also Known as John Doe, Respondent. The PEOPLE of the State of New York, Appellant, v. Alfred CLARK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 66

526 N.Y.S.2d 66

71 N.Y.2d 376, 520 N.E.2d 1355, 56 USLW 2499

The PEOPLE of the State of New York, Appellant, v. Paul BRIGHT, Also Known as John Doe, Respondent.

The PEOPLE of the State of New York, Appellant, v. Alfred CLARK, Respondent.

Court of Appeals of New York.

Feb. 17, 1988.

Michele Maxian and Caesar D. Cirigliano, New York City, for respondents.

Robert M. Morgenthau, Dist. Atty. (Barbara A. Sheehan and Norman Barclay, New York City, of counsel), for appellant.

OPINION OF THE COURT

TITONE, Judge.

The issue presented on these two appeals is whether Penal Law § 240.35(7), which provides that "[a] person is guilty of loitering when he * * * [l]oiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence", is constitutional. We hold that this statute is unconstitutionally vague under the Due Process Clauses of the Federal and State Constitutions because it fails to give fair notice to the ordinary citizen that the prohibited conduct is illegal, it lacks minimal legislative guidelines, thereby permitting arbitrary enforcement and, finally, it requires that a citizen relinquish his constitutional right against compulsory self-incrimination in order to avoid arrest.

I.

People v Bright

On the evening of March 19, 1985, a New York City policeman observed defendant Bright displaying an open satchel to a passerby on the Long Island Railroad Concourse located in Pennsylvania Station. When Bright noticed that the officer was watching him, he quickly closed the satchel. The policeman approached Bright and the following conversation took place:

"Officer: What are you doing here?

"Defendant: Why are you bothering me.

"Officer: Got a ticket to take the train?

"Defendant: No.

"Officer: Are you going to take the train?

"Defendant: No."

Based solely on this exchange, the officer escorted Bright to the Long Island Railroad police office, where he asked Bright to produce identification. When Bright failed to produce any, the officer informed him that he was under arrest for loitering pursuant to Penal Law § 240.35(7). Bright was read his Miranda warnings and asked to empty his pockets. As Bright removed a piece of paper from his trouser pocket, two credit cards and four other identification cards fell to the floor, none of which belonged to him. Bright then told the officer that he had found the various cards and planned to sell them.

Defendant Bright was charged by indictment with two counts of criminal possession of stolen property in the second degree (Penal Law § 165.45[2] ), and one count of criminal possession of stolen property in the third degree (Penal Law § 165.40). On his pretrial motion to suppress the physical evidence, Bright argued that he was arrested without probable cause, and that his arrest was illegal, since the loitering statute pursuant to which he was arrested was unconstitutional. The Supreme Court, relying on its decision in People v. Velazquez, 77 Misc.2d 749, 354 N.Y.S.2d 975, held that the statute was unconstitutionally vague and granted the suppression motion on the theory that the arrest was violative of the defendant's constitutional rights. A unanimous Appellate Division affirmed, without opinion, 125 A.D.2d 1016, 509 N.Y.S.2d 444.

People v Clark

On the morning of April 24, 1985, defendant Clark was in the Port Authority Bus Terminal located in New York City when he was approached by a Port Authority police officer. Although the record is not entirely clear as to what occurred next, the officer arrested Clark for loitering in violation of Penal Law § 240.35(7) when he was unable to give a satisfactory explanation regarding his presence in the bus terminal. As an incident to that arrest, the officer searched Clark and found a cellophane envelope containing cocaine and a glass pipe with cocaine residue in the defendant's jacket pocket.

Clark was charged with loitering (Penal Law § 240.35[7] ), and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). At his arraignment before the Criminal Court of the City of New York, Clark moved to dismiss the loitering charge on the ground that Penal Law § 240.35(7) was unconstitutionally vague. His motion was denied, and he was permitted to plead guilty to a violation of the loitering statute in satisfaction of both charges. On appeal before the Appellate Term, First Department, the court held that the statute was unconstitutionally vague and reversed the conviction, dismissed the loitering charge and remanded the case to the Criminal Court for further proceedings on the charge of criminal possession of a controlled substance, 135 Misc.2d 22, 515 N.Y.S.2d 382.

In each of these two cases, a Judge of this court granted the People leave to appeal so that we could consider the constitutionality of Penal Law § 240.35(7). We have examined the People's arguments in support of the statute, but agree with the defendants that the statute is void for vagueness, and we now affirm in both cases. ¹

II.

Penal Law § 240.35(7) is derived from two former enactments, Penal Law § 1990-a(2) (L.1939, ch. 391, as amended by L.1941, ch. 835, and L.1951, ch. 269) and Penal Law § 150(2) (L.1953, ch. 139). Under former Penal Law § 1990-a(2), a person was guilty of an offense if he loitered or was found sleeping "about any toilet, station or station platform of a subway or elevated railway or of a railroad" and was "unable to give satisfactory explanation of his presence".

The legislative history of Penal Law § 1990-a(2) indicates that the subways and railroad stations had become an attractive place for "fakers, perverts, pickpockets, loiterers, sleepers, flimflam men, etc., [who] infest[ed] these properties, night and day, necessitating constant policing by a large force of special officers and state railway officers" (Bill Jacket, L.1939, ch. 391, Senate Mem, at 4). Public officials and railroad authorities sought to prevent "peddlers and loiterers from harassing and annoying people on the railroad properties" (id., Senate Mem, at 3). The Legislature, aware that the courts were refusing to convict people arrested in the train and subway stations of vagrancy or disorderly conduct, considered the bill necessary to protect the traveling public, especially because of the desire to "clean up" the subways and other railroad facilities in anticipation of the World's Fair held in New York City in 1939 (id., Mayor's letter, at 10-11; Mem to Governor, at 14; see also, People v. Bell, 306 N.Y. 110, 113, 115 N.E.2d 821 [danger to public "arises from the congregation of nondescript characters at such locations"] ).

Former Penal Law § 150(2) made it an offense to loiter "about any toilet, area, station, station platform, waiting room or other appurtenance of an air or bus terminal" unless the loiterer was able "to give satisfactory explanation of his presence". This statute, like its counterpart, Penal Law § 1990-a(2), sought to provide "maximum passenger safety, comfort and convenience" by ridding these facilities of "many undesirable characters" who were loitering, soliciting business and begging in passenger terminals (Bill Jacket, L.1953, ch. 139, Mem in support, at 4-5).

In 1965, the Legislature enacted the statute at issue here, Penal Law § 240.35(7), restating in more general terms former Penal Laws §§ 150 and 1990-a(2) (see, Hechtman, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 240.35[7], at 317). Under the statute, one is guilty of a violation if he "[l]oiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence" (Penal Law § 240.35[7] ). A "transportation facility" is defined as "any conveyance, premises or place used for or in connection with public passenger transportation, whether by air, railroad, motor vehicle or any other method. It includes aircraft, watercraft, railroad cars, buses and air, boat, railroad and bus terminals and stations and all appurtenances thereto" (Penal Law § 240.00[2] ).

III.

An enactment of our Legislature is presumed to be valid and the heavy burden of demonstrating that a statute is unconstitutional rests with the one seeking to invalidate the statute ( Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 209 N.E.2d 539; Fenster v. Leary, 20 N.Y.2d 309, 314, 282 N.Y.S.2d 739, 229 N.E.2d 426; People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 253 N.E.2d 202). In a challenge to the constitutionality of a penal law on the grounds of vagueness, it is well settled that a two-pronged analysis is required. First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement ( see, Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903; Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222; Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110; People v. Nelson, 69 N.Y.2d 302, 307, 514 N.Y.S.2d 197, 506 N.E.2d 907; People v. Smith, 44 N.Y.2d 613, 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032; Matter of Sussman v. New York State Organized Crime Task Force, 39 N.Y.2d 227, 234, 383 N.Y.S.2d 276, 347 N.E.2d 638; People v. Heller, 33 N.Y.2d 314, 328, 352 N.Y.S.2d 601, 307 N.E.2d 601; People v. Berck, 32 N.Y.2d 567, 569, 347 N.Y.S.2d 33, 300 N.E.2d 411; People v. Pagnotta, supra, at 337, 305 N.Y.S.2d 484, 253 N.E.2d 202).

The rationale underlying the requirement that a penal statute provide adequate notice is the notion "that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed" ( United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989; see also, Colten v. Kentucky, 407 U.S. 104, 110, ...