People v. Furlong

• Decision Date: 10 October 1985
• Citation: 494 N.Y.S.2d 653,129 Misc.2d 938
• Parties: The PEOPLE of the State of New York v. Douglas J. FURLONG, Defendant.
• Court: New York District Court

Page 653

494 N.Y.S.2d 653

129 Misc.2d 938

The PEOPLE of the State of New York v. Douglas J. FURLONG, Defendant.

District Court, Nassau County First District, Criminal Part.

Oct. 10, 1985.

Denis Dillon, Dist. Atty., County of Nassau, Mineola, for the people.

Richard D. Furlong, c/o Messrs. Rivkin, Leff, Sherman & Radler, Garden City, for defendant.

HERBERT J. LIPP, Judge.

DECISION ON MOTION

The defendant in the instant proceeding was charged pursuant to a simplified information with the offense of having beer in his possession in the Jones Beach State Park, in violation of Park Regulation 9 NYCRR Section 415.2, adopted by the Long Island State Park Recreation and Historic Preservation Commission pursuant to Parks, Recreation and Historic Preservation Law Section 7.11(2). The defendant now moves for an order dismissing the simplified information on the ground that the aforesaid regulation is unconstitutional, in accordance with the holding of the Court of Appeals in People v. Lee, 58 N.Y.2d 491, 462 N.Y.S.2d 417, 448 N.E.2d 1328 (1983).

On April 29, 1985, this Court issued an interim order directing the defendant to serve photocopies of all papers in this action upon the Regional Director of the Long Island State Park, Recreation and Historic Preservation Commission, for the purpose of allowing the Commission to file amicus curiae briefs addressing the background and validity of Regulation 415.2, with which directive the defendant complied. In the absence of a response from the Commission and based upon the language of the regulation as promulgated, the Court is constrained to find that the regulation is unconstitutional.

The regulation under challenge, 9 NYCRR Section 415.2, provides as follows: "No person shall, except under or by virtue of a special permit or license issued by the commissioner, bring into any park or have in his possession in any park any beer or other alcoholic beverage, other than those purchased at a controlled sale at a park refreshment stand, except that beer, wine and other alcoholic beverages for temperate and personal use of patrons 19 years of age or older shall be permitted in camping areas of Wildwood State Park, Hither Hills State Park and Heckscher State Park."

The defendant contends that because the regulation proscribes the possession of beer or other alcoholic beverage without requiring intent to consume such beverage, it is unconstitutional pursuant to People v. Lee, supra. The People argue, first, that the Court of Appeals' holding in People v. Lee did not address the regulation at issue and must be limited to its facts, and second, that the instant motion to dismiss is not the proper vehicle for testing the constitutionality of the regulation.

Contrary to the latter contention, a dismissal motion is authorized by CPL 170.30(1)(a) and 170.35(1)(c) as a means for challenging the constitutionality of a statute under which a defendant is being prosecuted. Constitutional questions should not be reached unless there is a need for their determination to resolve the issue at hand and the question is squarely presented. Comiskey v. Arlen, 43 N.Y.2d 696, 401 N.Y.S.2d 200, 372 N.E.2d 34; Matter of Peters v. New York City Housing Authority, 307 N.Y. 519, 121 N.E.2d 529. The instant dismissal motion directly challenges the constitutionality of park regulation 415.2, making a determination thereof both necessary and unavoidable.

Any legislative enactment which is challenged on constitutional grounds is afforded a strong presumption of constitutionality. People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202; Cook v. City of Binghamton, 48 N.Y.2d 323, 422 N.Y.S.2d 919, 398 N.E.2d 525. This presumption attaches to all legislation, local or otherwise. People v. Pace, 111 Misc.2d 488, 444 N.Y.S.2d 529.

Moreover, the Court is aware of the guiding principle that a court of original jurisdiction should not set aside a statute as unconstitutional unless that conclusion is inescapable. People v. Cornish, 104 Misc.2d 72, 427 N.Y.S.2d 564; People v. Ryals, 100 Misc.2d 551, 420 N.Y.S.2d 257; 1 McKinneys Consolidated Laws, Statutes, Section 150(a). While the challenge to the regulation at issue herein appears to be of first impression, this Court nevertheless concludes that the regulation must be found unconstitutional in light...