People v. Davan Executive Services, Inc.

• Decision Date: 28 October 1977
• Citation: 399 N.Y.S.2d 368,91 Misc.2d 1020
• Parties: The PEOPLE of the State of New York v. DAVAN EXECUTIVE SERVICES, INC., Defendant.
• Court: New York City Court

Page 368

399 N.Y.S.2d 368

91 Misc.2d 1020

The PEOPLE of the State of New York v. DAVAN EXECUTIVE SERVICES, INC., Defendant.

Criminal Court of the City of New York, New York County, Part SP2.

Oct. 28, 1977.

W. Bernard Richland, Corp. Counsel, New York City (Ira L. Blankstein, New York City, of counsel), for the people.

Leon A. Milman, Brooklyn, for defendant.

RAYMOND REISLER, Judge:

Defendant Davan Executive Services, Inc. (hereinafter Davan) was on November 9, 1976 charged by corporate appearance ticket with operating an employment agency without a license, a violation of section 172 of the General Business Law.

The defendant now moves to dismiss and to suppress statements allegedly made by its president to an inspector of the Bureau of Consumer Affairs of the City of New York.

The motion to suppress is unfounded. Motions to suppress statements, as per Criminal Procedure Law section 710.20(3) relate only to those statements made by actual defendants. The defendant herein is Davan, and not its president.

Defendant bases its motion to dismiss upon four grounds. The first two are constitutional in nature: that there has been discriminatory enforcement of General Business Law section 172 in the issuance to defendant of the summons and that this statute violates due process in that it is void for vagueness.

Although intentional or purposeful discrimination in the administration of an otherwise non-discriminatory law violates equal protection (People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139), the conscious exercise of some selectivity in law enforcement is not in itself a constitutional violation (Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446). Mere unequal application of a statute does not violate equal protection (People v. Acme Markets, 37 N.Y.2d 326, 372 N.Y.S.2d 590, 334 N.E.2d 555). The burden of showing conscious intentional discrimination lies squarely on the one who alleges discriminatory enforcement (People v. Goodman, supra; People v. Utica Daw's Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128).

Here no valid basis of defendant's allegation of discriminatory treatment is demonstrated. Defendant merely states that on a previous inspection eleven months earlier, no summons was served. This fails to show the invidious discriminatory selectivity necessary to invoke equal protection. It would be necessary to show that the selectivity "was deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification" (People v. Oyler, supra).

The defendant's second ground is that G.B.L. section 172 violates due process in that it is void for vagueness. It is argued that the definition of what constitutes an employment agency is so vague that it does not fairly apprise defendant of the necessity of procuring a license. However, a fair reading of the relevant statutes squarely rebuts this contention. Section 172 of the General Business Law provides that "No person shall open, keep, maintain, own, operate or carry on any employment agency" without having first procured the required license. Section 171 thereof in detail defines what constitutes an employment agency. As it relates to the instant case, section 171(2)(a) defines employment agency as meaning any person (including a corporation) "who, for a fee, procures or attempts to procure: (1) employment or engagements for persons seeking employment or engagements . . .." " Employment agency" also includes "any person who renders vocational guidance or counselling services and who charges a fee, all or any part of which is in consideration of such person procuring or attempting to procure employment or engagements for persons seeking employment or engagements" (G.B.L. § 171(2)(c)).

Defense counsel by its affirmation in support of the motion states that the function of Davan, in addition to providing mailing service, desk space and confidentiality for executives seeking to procure corporate positions is to provide resume preparation services and mailing lists of all companies in the individual executive's field.

Due process requires that a statute inform those subject to its terms of the nature of the prohibited conduct and what is required of them, and the language used may be expressed in ordinary terms by words of common usage (People v. Byron, 17 N.Y.2d 64, 268 N.Y.S.2d 24, 215 N.E.2d 345). Impossible standards are not required, and lack of precision is permissible as long as the prohibited practice is one commonly understood (Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419).

In Nik-O-Lok Co. v. Carey, 52 A.D.2d 375, 384 N.Y.S.2d 211, the plaintiff sought to have declared unconstitutional section 399-a of the General...