People v. Greene

• Decision Date: 24 July 1981
• Citation: 441 N.Y.S.2d 636,110 Misc.2d 40
• Parties: The PEOPLE of the State of New York v. Sherri GREENE, Defendant.
• Court: New York City Court

Page 636

441 N.Y.S.2d 636

110 Misc.2d 40

The PEOPLE of the State of New York v. Sherri GREENE, Defendant.

Criminal Court of the City of New York,

New York County.

July 24, 1981.

Robert M. Morgenthau, Dist. Atty., New York County, for the People; Mary O'Donoghue, Whitestone, of counsel.

Kassner & Detsky, New York City, for defendant; Kenneth Fields, New York City, of counsel.

JEFFREY ATLAS, Judge:

Defendant was charged, by information with prostitution (Penal Law § 230.00). The defendant now moves (under CPL § 170.35) to dismiss the information as defective claiming that the allegations contained in the accusatory instrument do not make out the crime of prostitution.

The accusatory instrument states: "Deponent, Police Officer Steven D'Antonio, Shield # 14420, states that at the above time and place the defendant did approach and engage the deponent in conversation and did agree to commit an unlawful sexual act with the deponent for a fee, to wit: to be naked, to manipulate her genitals and to allow the deponent to orgasim." [sic]

Section 230.00 of the Penal Law states: "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 argues that the information is defective because the acts which the defendant agreed to perform would not, if performed by her, constitute "sexual conduct with another" as that phrase is used in Penal Law § 230.00.

Since defendant's argument assumes that the proposed acts of the defendant would constitute "sexual conduct" if performed by her, the issue before me is solely whether, in this case, the proposed sexual conduct of the defendant was to be performed "with another" as that phrase is used in Penal Law § 230.00.

Article 230 of the Penal Law does not define the phrase "with another" (nor, for that matter, the phrase "sexual conduct.") However, an appropriate definition can be obtained by construing the section (Penal Law § 230.00) "according to the fair import of terms to promote justice and effect the objects of the law" (Penal Law § 5.00).

It is clear that the legislature did not intend Penal Law § 230.00 to proscribe commercial agreements to engage in any and all kinds of sexual conduct. ¹ Certainly, had the legislature intended to proscribe the sale of all sexual conduct it could well have done so by excluding from Penal Law § 230.00 the phrase "with another person." The inclusion of that phrase in Penal Law § 230.00 connotes, at least, that the accused's agreement must, to be criminal, contemplate physical contact between the accused and one other person. Were Penal Law § 230.00 intended to proscribe agreements by which only the accused "prostitute" was to engage in sexual conduct, while for example, the beneficiary was to act only as voyeur--that is, agreements to engage in sexual conduct for another person and without physical contact between them--it would have been necessary for the legislature simply to proscribe all agreements to engage in sexual conduct for a fee.

More significantly, were the phrase "sexual conduct with another person" to be interpreted as proscribing agreements calling for sexual conduct to be performed for another person, as well as with another person, Penal Law § 230.00 would surely intrude upon areas of behavior traditionally protected by the First Amendment to the United States Constitution.

The defendant is accused of having agreed only to perform an auto-erotic exhibition for another. However, auto-erotic exhibitions, performed for a fee before an audience (albeit an audience of one), may certainly be "performances" as that term has been traditionally defined and as it is specifically defined in Penal Law § 235.00. ²

It is clear that Penal Law § 230.00 may not be construed to prohibit such exhibitions or performances when obscene in character, since obscene performances are clearly proscribed by Article 235.00 of the Penal Law. To read the two sections as covering the exact same activity would, in this particular respect render meaningless Penal Law § 230.00. Moreover, to do so would render nugatory the carefully drafted and stringent tests of obscenity contained in Articles 235.00 and 263.00. ³ It is also clear that Penal Law § 230.00 may not be construed to prohibit performances not obscene in character. Were it so read, the section would prohibit the production of plays, movies, and materials...