People v. Costello
| Citation | 395 N.Y.S.2d 139,90 Misc.2d 431 |
| Court | United States State Supreme Court (New York) |
| Decision Date | 01 June 1977 |
| Parties | The PEOPLE of the State of New York v. Joe COSTELLO, Defendant. |
Robert M. Morgenthau, Dist. Atty., New York County by Alan Blumenkopf, New York City, of counsel, for the People.
Seymour Detsky, New York City, for defendant.
The defendant stands convicted, after a jury trial, of the crime of promoting prostitution in the second degree. After verdict, the defendant moved for a dismissal on the ground that the statute defining prostitution (Penal Law § 230.00) is unconstitutionally vague and overbroad and that in this enlightened century "recreational sex" is a basic right immune from penal sanctions.
Penal Law, section 230.00 defines prostitution as follows:
"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."
The defendant correctly notes that the terms "sexual conduct" and "fee" are not further defined in Article 230. Accordingly, it is argued that the terms, particularly "sexual conduct," are so vague that they fail to apprise a reasonable man of the proscribed activity. On the other hand, it is claimed that if the terms are given their literal and broadest meaning, then the statute attempts to regulate conduct which is beyond the scope of the state police power.
Failure to define terms does not render a statute unconstitutional when the terms have a commonly understood meaning (Matter of Gold v. Lomenzo, 29 N.Y.2d 468, 329 N.Y.S.2d 805, 280 N.E.2d 640). The only reported case construing the terms "sexual conduct" and "fee" as regards the prostitution statute is People v. Block, 71 Misc.2d 714, 337 N.Y.S.2d 153 (Nassau County Ct. 1972). In the Block case the court defined "sexual conduct" by engrafting the definition of that term contained in Penal Law, section 235.20. The definition in section 235.20 is expressly restricted in its application to Penal Law, sections 235.21 and 235.22 which deal with the dissemination of indecent materials to minors. Since this restriction prevents its application to other sections in Article 235, it clearly cannot be engrafted to the prostitution article. Moreover, the definition of sexual conduct in section 235.20 includes contact with the clothed genital areas, clothed buttocks and clothed female breasts, types of activity not normally included within the concept of prostitution.
A far more limited and logical definition can be obtained by following the dictates of Penal Law, section 5.00 and construing the statute "according to the fair import of (its) terms to promote justice and effect the objects of the law." The term "prostitution" itself has a commonly understood meaning, and the use of the term "fee" in the statutory definition is the key to that meaning. The legislature has enacted the section to prohibit commercial exploitation of sexual gratification. The methods of obtaining that gratification are as broad and varied as the term "sexual conduct," but the common understanding of the term "prostitution" involves the areas of sexual intercourse, deviate sexual intercourse, and masturbation. The many non-physical facets of sexual conduct are defined and regulated by other statutes (e. g., obscenity and exposure of a female).
Interpreting the statute in this fashion, the defendant's claim that the statute is overly broad must also fail. The state clearly has a legitimate interest in regulating the commercialization of sex within the guidelines set down by the United States Supreme Court (cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542).
The court is aware that, even under the restricted definition of sexual conduct adopted in this decision, marginal cases may arise where the criminality of the conduct is not clear. That fact, however, is not...
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