People v. Gillings

• Decision Date: 22 March 1991
• Docket Number: AP-3
• Citation: 568 N.Y.S.2d 1012,149 Misc.2d 950
• Parties: The PEOPLE of the State of New York, v. Garfield GILLINGS, Defendant
• Court: New York City Court

Page 1012

568 N.Y.S.2d 1012

149 Misc.2d 950

The PEOPLE of the State of New York, v. Garfield GILLINGS, Defendant.

Criminal Court of the City of New York New York County, Part AP-3.

March 22, 1991.

Robert M. Morgenthau, Dist. Atty., Stephanie Hubelbank, Asst. Dist. Atty., New York City, for the People.

Scott Steiner, New York City, for defendant.

ALFRED DONATI, Jr., Judge:

Defendant, Garfield Gillings, is charged with selling "albums" on Waverly Place and Sixth Avenue on July 25, 1990, without a proper vendor's license, in violation of New York City Administrative Code § 20-453 (hereinafter § 20-453), which mandates such license for New York City vendors. § 20-453 reads as follows:

It shall be unlawful for any individual to act as a general vendor without having first obtained a license in accordance with the provisions of this subchapter, except that it shall be lawful for a general vendor who hawks, peddles, sells or offers to sell, at retail, only newspapers, periodicals, books, pamphlets or other similar written matter, but no other items required to be licensed by any other provision of this code, to vend such without obtaining a license therefor. (emphasis added).

The information against defendant reads, in pertinent part, as follows:

"... Police Officer Hector Lorenzo ... observed the above-named defendant display and offer for sale Albums (sic) without a proper vendor's license. Specifically, the officer saw defendant standing for a period of approximately 5 minutes immediately behind a blanket with albums on it, and saw defendant exchange the above-described merchandise with 1 passerby in return for currency.

At the time of the officer's observations, defendant was not displaying a license issued by the Department of Consumer Affairs and could not produce one when asked, Moreover and (sic) the officer has examined an official list of vendors licensed by the Department of Consumer Affairs and defendant's name does not appear on that list."

Defendant entered into a stipulation with the People, on January 7, 1991, which characterizes the contents of the record albums in question. The stipulation provides in pertinent part as follows:

1. Approximately 200 record albums were confiscated.

2. All of the albums were used and most were of "historical interest".

3. The majority of albums were jazz, the collection also included classical and rock music, prose and poetry.

4. Included in the collection was the poetry of Carl Sandberg and an album of Basil Rathbone reading Edgar Allan Poe.

5. Many of the albums contained "album notes" concerning the recordings.

Defendant argues that the materials sold by him are protected under Article 1, Section 8 of the New York State Constitution and under the First Amendment and Equal Protection Clause of the United States Constitution, ¹ in that those constitutional provisions would be violated if the materials sold by defendant were not treated as coming within the ambit of the written matter exception set forth in § 20-453, above (see, Schad v. Mount Ephraim, 452 U.S. 61, 69-70, 101 S.Ct. 2176, 2183-84, 68 L.Ed.2d 671 [1981]; Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 82-84, 108 S.Ct. 1645, 1653, 100 L.Ed.2d 62 [1988]; Arcara v. Cloud Books, 68 N.Y.2d 553, 510 N.Y.S.2d 844, 503 N.E.2d 492 [1986]; People v. Shapiro, 139 Misc.2d 344, 527 N.Y.S.2d 337 [Criminal Court, New York Co. 1988].

Specifically, defendant alleges that the described record albums should not be distinguished from those materials literally protected by the written matter exception in § 20-453, for purposes of that exception from the license requirements of § 20-453.

That exception, which allows vendors of written matter to vend without a license, was designed to permit the constitutionally protected flow of free expression associated with the medium of the written word (see People v. Milbry, 140 Misc.2d 476, 480, 530 N.Y.S.2d 928 [Crim.Ct., New York Co.1988]; People v. Krebs, 54 Misc.2d 578, 282 N.Y.S.2d 996 [Crim.Ct., New York Co.1967]. An examination of the specifics set forth in the stipulation above reveals that some of the albums seized, namely those which contain words with music, words alone or accompanying written notes, could be found to come within the ambit of the written matter exception of § 20-453, upon application of the legislative purpose for that exception, and the applicable constitutional principles (see Schad, supra, 452 U.S. at 69-70, 101 S.Ct. at 2183-84; Crenshaw, supra, at 82-84, 108 S.Ct. at 1653; Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 [1973]; Shapiro, supra, 139 Misc.2d at 346-347, 527 N.Y.S.2d 337). Moreover, wherever possible, statutory or administrative provisions should be construed to avoid constitutional problems (see De Bartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 [1988].

However, some of the albums, which are recordings of music alone, without lyrics or accompanying written notes, do not fall within the written matter exception of § 20-453. Music, a form of expression and communication, is of course protected under the First Amendment (see Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 [1990]. But, music alone, without some word or speech component, is not so similar to the written matter protected by the exception in § 20-453, as to constitute an invidious or arbitrary omission on the part of the legislature which...