People v. Colozzo, AFL-CIO

Decision Date18 September 1967
Docket NumberAFL-CIO
Citation54 Misc.2d 687,283 N.Y.S.2d 409
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Joseph COLOZZO, Battista Balsamo, International Longshoremen's Association() et al., Defendants.
CourtNew York Supreme Court


The defendants are ten individuals, the International Longshoremen's Association and two locals of said union and third-four corporations which employ members of the union. The defendant Balsamo is alleged in the indictment to have been, prior to March 15, 1965, convicted of felonies in Michigan and New Jersey for which he has not been pardoned or received a certificate of good conduct from the Board of Parole. The indictment charges a violation of section 9933 of the Unconsolidated Laws, Laws 1953, c. 882 as amended (§ 8, Waterfront Commission Act) in that between March 15, 1965 and January 15, 1967, when Local 1277 of the union, a labor organization as defined in the statute, had as an agent or employee, the said Balsamo, all of the defendants, acting in concert, solicited, collected and received in Kings County dues for and on behalf of said Local and pursuant to agreement delivered said dues to the Local.

Section 8 (L.1953, ch. 882, § 8, as amd. by L.1961, ch. 211, & 3, McK.Unconsol.Laws, § 9933) provides: 'No person shall solicit, collect or receive any dues * * * within the state for or on behalf of any labor organization * * * if any officer, agent or employee of such labor organization * * * has been convicted by a court of the United States, or any state or territory thereof, of a felony * * * unless he has been subsequently pardoned therefor * * * or has received a certificate of good conduct from the board of parole * * * to remove the disability.' Neither section 8(9933) nor any other provision of the act makes a violation of section 8 a crime. The People, however, attach criminality thereto by virtue of section 29 of the former Penal Law which states: 'Where the performance of any act is prohibited by a statute, and no penalty for the violation of such statute is imposed in any statute, the doing such act is a misdemeanor.' The new Penal Law, which became effective on September 1, 1967, omits therefrom, and thus repealed, section 29 of the former law. A violation of section 8(9933) after September 1, 1967 would thus concededly not be criminal, but the former law is applicable to this alleged offense committed prior thereto (§ 5:05, new Penal Law).

The defendants have demurred to the indictment. It must therefore be determined whether the facts stated therein constitute a crime.

Section 29 of the former Penal Law has been applied in a number of cases. In none of these cases, however, has it been attacked as constitutionally vulnerable.

Generally, when the Legislature has made the violation of a statute criminal, it has said so in the statute itself, or in some other statute in the same article or chapter of the laws. This is required so that a person reading the statute shall be made aware of its criminal consequences. For, a penal statute must give fair warning as to its application and must not be so vague that persons of common intelligence must guess or differ as to its application (People v. Zanchelli, 8 Misc.2d 1069, 1070, 169 N.Y.S.2d 197, 180; People v. Phyfe, 136 N.Y. 554, 32 N.E. 978, 19 L.R.A. 141; People v. Shakun, 251 N.Y. 107, 114, 167 N.E. 187, 189, 64 A.L.R. 1066; People v. Caswell-Massey Co., 6 N.Y.2d 497, 501, 190 N.Y.S.2d 649, 652, 160 N.E.2d 895, 898; People v. Vetri, 309 N.Y. 401, 405, 131 N.E.2d 568, 570; People v. Adamkiewicz, 298 N.Y. 176, 81 N.E.2d 76; People v. Benc, 288 N.Y. 318, 43 N.E.2d 61; People v. Bloomenstiel, 48 Misc.2d 771, 774, 265 N.Y.S.2d 877, 880).

Section 29 on its face, and read literally, is broad and all-inclusive, and includes within its sweep, all acts prohibited by, and unpenalized in, a statute. If it were to be so universally applied, the question would arise whether its presence lurking in the Penal Law is a sufficient warning to one reading an unrelated statute that such hidden and unexpressed therein criminality is contained therein. Nevertheless, despite its broad language, section 29 has in fact not been applied by the courts to all such statutes, but has been applied to some (People v. Merolla, 18 Misc.2d 383, 181 N.Y.S.2d 476, 11 A.D.2d 799, 205 N.Y.S.2d 978, 9 N.Y.2d 62, 211 N.Y.S.2d 155, 172 N.E.2d 541, cert. den. 365 U.S. 872, 81 S.Ct. 906, 5 L.Ed.2d 861; Gardner v. People, 62 N.Y. 299; People ex rel. Weatherwax v. Watt, 115 Misc. 120, 134, 188 N.Y.S. 559, 567; People v. Olcese, 41 Misc. 102, 83 N.Y.S. 973; Matter of Vanderhoff, 15 Misc. 434, 36 N.Y.S. 833) and held not to apply to others (People v. Freres, 5 A.D.2d 868, 171 N.Y.S.2d 274; People v. Luongo, 39 Misc.2d 905, 242 N.Y.S.2d 98; People ex rel. Warren v. Beck, 144 N.Y. 225, 227, 39 N.E. 80; 1946 Op.Atty.Gen. 149, 155). In De Veau v. Braisted, 5 A.D.2d 603, 610, 174 N.Y.S.2d 596, affd. 5 N.Y.2d 236, 183 N.Y.S.2d 793, 157 N.E.2d 165, affd. 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109, the Appellate Division of this Department specifically raised the question whether section 29 is applicable to a violation of section 8(9933), the statute involved herein, but the court left the question open and undecided.

There is a profusion of prohibitory statutes scattered among the Consolidated and Unconsolidated Laws of New York in which no criminal penalty is provided. If section 29 is applicable to some and not to others without specifying which or specifying standards precise enough to determine to which it is to be applied, how can anyone know or determine at the time of committing an act proscribed by one of these statutes whether or not he is committing a crime? For example, section 14 of the Judiciary Law provides: 'A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree'. Any judgment or decision in such a case is void (In re Thoms' Trust, 24 A.D.2d 536, 261 N.Y.S.2d 304). Judges are presumed, in our society, to be most cognizant of the law, but scarcely one of them would not have been surprised or shocked to find that section 29 might be applicable to this statute so as to render the offending judge a criminal How do even judges know at this time whether section 29 would, if such a judge had been indicted, have been applied to section 14 of the Judiciary Law or whether it would have been held to be an excluded therefrom statute, since section 29 contains no standard by which such discrimination may be made? The answer would thus depend upon an ad hoc future determination in that case as was done in the previously reported cases involving various other statutes.

Section 29 thus left the public uncertain as to which statutes it was applicable. Section 29 is thus vague and devoid of standards and is violative of due process of law. '(A) law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case' (Giaccio v. State of Pennsylvania, 382 U.S. 399, 402--403, 86 S.Ct. 518, 520, 15 L.Ed.2d 447, 550; United States v. Mersky, 361 U.S. 431, 440, 80 S.Ct. 459, 4 L.Ed.2d 423, 431; United States v. Five Gambling Devices, 346 U.S. 441, 74 S.Ct. 190, 98 L.Ed. 179; Bouie v. City of Columbia, 378 U.S. 347, 350, 355, 84 S.Ct. 1697, 12 L.Ed.2d 894, 898, 901). This, 'under these circumstances would be to send him to jail for a crime he could not with reasonable certainty know he was committing. This Court has often held that fundamental fairness requires that such reasonable certainty exist' (Scull v. Commonwealth of Virginia, 359 U.S. 344, 353, 79 S.Ct. 838, 843, 3 L.Ed.2d 865, 871). 'The vice of vagueness in criminal statutes is the treachery they conceal either in determining what persons are included or what acts are prohibited' (United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 200, 202). I hold, therefore, that section 29 is so infected with uncertainty as to which statutory prohibitions are included within its sweep as to render it lacking in the requisite due process of law to satisfy the Fourteenth Amendment to the Federal Constitution and Article I, Section 6 of the New York State Constitution.

Even assuming section 29 to be constitutional and applicable to section 8(9933), the defendants assert that section 8 as applied to them is repugnant to the Due Process Clauses of the Federal and State Constitutions because of the lack in section 8 of any requirement of scienter, so that they might be convicted thereunder even if they had no knowledge of Balsamo's prior convictions. Attacks on the constitutionality of section 8 have previously been...

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