People v. Gallucci

• Decision Date: 07 April 1978
• Citation: 404 N.Y.S.2d 768,62 A.D.2d 1129
• Parties: PEOPLE of the State of New York, Appellant, v. Armand GALLUCCI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 768

404 N.Y.S.2d 768

62 A.D.2d 1129

PEOPLE of the State of New York, Appellant, v. Armand GALLUCCI, Respondent.

Supreme Court, Appellate Division,Fourth Department.

April 7, 1978.

Lawrence T. Kurlander, Dist. Atty., Rochester, for appellant by Melvin Bressler, Rochester.

Louis P. Iannini, Rochester, for respondent.

Before MARSH, P. J., and DILLON, HANCOCK, DENMAN and WITMER, JJ.

MEMORANDUM:

The People appeal from an order dismissing all counts of an indictment against the defendant for insufficient evidence. The indictment charged the defendant, the owner/manager of Nero's Restaurant in Irondequoit, with Promoting Prostitution in the 2nd degree, in violation of Penal Law, § 230.25, subd. 1; Obscenity in the 2nd degree, in violation of Penal Law, § 235.05, subd. 2; and Criminal Nuisance, in violation of Penal Law, § 240.45, subd. 2.

The charges arose in connection with a stag party at Nero's on May 26, 1976, which was organized by the defendant in honor of two patrons. The evidence indicated that the defendant organized and planned the party, had tickets printed, sold tickets and was present on the night of the party. Following the dinner two women, joined by a man from the audience, gave an explicit sexual performance in the nude. After the show the women retired to a Dodge van without license plates, which was parked behind the restaurant, where they began to perform acts of prostitution. The Irondequoit police arrived and abruptly put an end to the activity. Defendant and several others were arrested but only defendant was indicted.

A Grand Jury indictment is presumptively valid (People v. Waterman, 9 N.Y.2d 561, 565, 216 N.Y.S.2d 70, 74; People v. Rallo, 46 A.D.2d 518, 527, 363 N.Y.S.2d 851, 859, aff'd, 39 N.Y.2d 217, 383 N.Y.S.2d 271, 347 N.E.2d 633) and should not be dismissed absent a clear showing by the defendant that the evidence before the Grand Jury, even if unexplained or uncontradicted, would not warrant conviction by a trial jury (CPL 190.65, subd. 1, 210.30; People v. Rallo, supra, 46 A.D.2d p. 527, 363 N.Y.S.2d p. 859; People v. Potwora, 44 A.D.2d 207, 354 N.Y.S.2d 492; People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500, aff'd, 33 N.Y.2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432; cf., People v. Jackson, 18 N.Y.2d 516, 519, 277 N.Y.S.2d 263, 265, 223 N.E.2d 790, 791) or would not warrant conviction of any lesser included offense (People v. Frisbie, 40 A.D.2d 334, 336, 339 N.Y.S.2d 985, 987).

In reviewing the first count of the indictment, we conclude that the trial court properly dismissed that count of the indictment for insufficient evidence. Under that count defendant was charged with Promoting Prostitution in the 2nd degree in violation of Penal Law, § 230.25, subd. 1, which reads as follows:

"A person is guilty of promoting prostitution in the second degree when he knowingly:

1. Advances or profits from prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving activity by two or more prostitutes; . . ." That section's predecessor (Former Penal Law, § 2460) was held to be inapplicable to single acts of prostitution but was rather intended to "get the tycoons of organized vice" (People v. Jelke, 1 N.Y.2d 321, 326, 152 N.Y.S.2d 479, 483, 135 N.E.2d 213, 216). In Jelke, the Court of Appeals quoted language from People v. Draper, 169 App.Div. 479, 154 N.Y.S. 1034, which characterized § 2460 and its predecessors as seeking to "prevent prostitution and concubinage as a business ". The present section is obviously designed to prevent the same kind of organized prostitution activity and thus is inapplicable to the case before us. The evidence here points toward a single stag party and the trial court properly dismissed the count of Promoting Prostitution in the 2nd degree.

The question remains, however, whether there was sufficient evidence on which a jury could convict defendant of the lesser included offense of Promoting Prostitution in the 3rd degree. Section 230.20 of the Penal Law provides that a person is guilty of Promoting Prostitution in the 3rd degree when he "knowingly advances or profits from prostitution." Penal Law, § 230.15, defines "advances prostitution" in the following terms:

"1. 'Advance prostitution.' A person 'advances prostitution' when, acting other than as a prostitute or as a patron thereof, he knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution."

In order for a jury to convict defendant under this section, the evidence would have to show that he knowingly aided the two women in engaging in prostitution either by soliciting patrons or providing the persons (the two women) or premises (the van) for prostitution purposes. There was no evidence to connect defendant to the prostitution activity taking place in the van, nor with procurement of the van. The van was parked in a common parking lot and there was no evidence that the van was visible from inside the restaurant; that defendant was in a position to observe movement through the back door of the restaurant; knew of the van's existence or of the activity going on in the van. In addition, there was no evidence that defendant had made any arrangement with the women or had had any contact with them; therefore, there was insufficient evidence to warrant his conviction of Promoting Prostitution in the 3rd degree.

There remains the possibility of conviction for Permitting Prostitution in violation of Penal Law § 230.40, which, under the circumstances of this case, could be considered a lesser included offense (CPL 1.20 subd. 37; People v. Johnson, 39 N.Y.2d 364, 367, 384 N.Y.S.2d 108, 109, 348 N.E.2d 564, 565; People v. Flores, 42 A.D.2d 431, 348 N.Y.S.2d 425). That section provides as follows:

"A person is guilty of permitting prostitution when, having possession or control of premises which he knows are being used for prostitution purposes, he fails to...