People v. Jose L.

• Decision Date: 13 June 1979
• Citation: 99 Misc.2d 922,417 N.Y.S.2d 655
• Parties: The PEOPLE of the State of New York v. JOSE L., Defendant.
• Court: New York City Court

Page 655

417 N.Y.S.2d 655

99 Misc.2d 922

The PEOPLE of the State of New York v. JOSE L., Defendant.

Criminal Court of City of New York, New York County.

June 13, 1979.

Robert Morgenthau, Dist. Atty., New York County, for the People by Thomas A. Tormey, Jr., Asst. Dist. Atty., New York City, of counsel.

James M. Montgomery, New York City, for defendant.

Decision and Order

STANLEY GARTENSTEIN, Judge.

Defendant Jose L. is charged with the crime of consensual sodomy under Penal Law 130.38, a Class B misdemeanor. He moves to dismiss the accusatory instrument (CPL 170.30, subd. 1(a) and CPL 170.35, subd. 1(c)) based on his contention that this section is offensive to the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution and Article 1, Section 11 of the New York State Constitution and hence unconstitutional on its face.

In litigating the instant motion, defendant in essence concedes arguendo the factual allegations against him to the effect that he committed a specified act of consensual sodomy with a person to whom he was not married. He argues, however, that this prosecution for consensual sodomy under Penal Law 130.38 violates his constitutionally protected right to Equal Protection of the law.

THE FACTS:

On November 25, 1978, Police Officers Franzese and Zangino of the 9th Precinct were on routine patrol. At approximately 1:45 a. m., they spotted a commercial van parked on the side of the roadway at the intersection of 12th Street and 3rd Avenue in Manhattan. Their interest was piqued by the fact that it was parked at an odd angle with one rear wheel having jumped the curb. The officers approached the van, looked through the rear window and observed a female performing fellatio upon the defendant. Upon being apprised that he was being observed by police officers, the mortified defendant attempted to leave the scene by hastily starting the van. His attempted escape was aborted by the officers who placed him under arrest on a charge of consensual sodomy. The somewhat less perturbed female participant was also arrested and charged with prostitution.

JURISDICTIONAL STATUTES:

Under Penal Law § 130.38, "(a) person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person." The term "deviate sexual intercourse" is defined in Penal Law § 130.00, subdivision 2 as "sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva."

Defendant contends that although it is within a State's police powers to proscribe acts of consensual sodomy for all persons, criminalization thereof solely for those not married to each other is violative of his right to equal protection of the law, since no valid state interest is demonstrated supportive of this differentiation in treatment.

PRESUMPTION OF CONSTITUTIONALITY:

Initially, the court notes a strong presumption of constitutionality which attaches to enactments of the Legislature (People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202 (1969); Matter of Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539 (1965); People v. Venable, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 (1975)). A challenge to constitutionality must shoulder the heavy burden of rebutting this presumption beyond a reasonable doubt (People v. Parker, 41 N.Y.2d 21, 390 N.Y.S.2d 837, 359 N.E.2d 348 (1976); People v. Scott, 26 N.Y.2d 286, 309 N.Y.S.2d 919, 258 N.E.2d 206 (1970); Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 229 N.E.2d 426 (1967); Matter of Van Berkel v. Power, supra).

It is inappropriate for a court of original jurisdiction to strike down a statute unless its infirmity is patent and inescapable. Moreover it must be demonstrated that a constitutional interpretation thereof is not possible (Bohling v. Corsi, 204 Misc. 778, 127 N.Y.S.2d 591 (S.Ct., Oneida County (1953), aff'd 306 N.Y. 815, 118 N.E.2d 823 (1954), app. dsmd. 348 U.S. 802, 75 S.Ct. 35, 99 L.Ed. 634 (1954); Farrall v. Bragalini, 11 Misc.2d 1075, 178 N.Y.S.2d 850 (S.Ct., Oneida County (1958), app. dsmd. 4 N.Y.2d 1030, 177 N.Y.S.2d 683, 152 N.E.2d 648 (1958)).

CONSTITUTIONAL ATTACK:

Defendant contends that Penal Law 130.38 must be struck down inasmuch as its exemption of married persons who engage in consensual sodomy with each other from prosecution thereunder results in denial of equal protection of the law to unmarried consensual sodomites.

In support of this contention, defendant relies on Supreme Court rulings in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and Eisenstadt v Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1971). Griswold by its own terms protected sexual privacy as an adjunct of the marital relationship, the court stating:

"(i)t is one thing when the State exerts its power to forbid extra-marital sexuality . . . but is quite another when having acknowledged a marriage and the intimacies inherent to it, it undertakes to regulate by means of the criminal law the details of that intimacy."

In Eisenstadt v. Baird, supra, the Supreme Court struck down a Massachusetts statute prohibiting distribution of contraceptives to unmarried persons for any purpose other than prevention of disease while permitting such distribution to married persons. "We hold" wrote Mr. Justice Brennan for the Court, "that by providing dissimilar treatment for married and unmarried persons who are similarly situated, Massachusetts General Law Ann., c. 272, secs. 21 and 21A, violate the Equal Protection Clause", 405 U.S., at pp. 454-455, 92 S.Ct., at p. 1039, 31 L.Ed.2d 349.

Defendant now claims that a reading of Griswold And Eisenstadt together will yield an implied extension of the sexual privacy argument to unmarried persons as well inasmuch as the Supreme Court's ruling in Eisenstadt refused to recognize the act of marriage as a valid basis for classification. We disagree.

The precise argument made by defendant herein was categorically rejected in People v. Rice and Mehr, 87 Misc.2d 257, 258, 383 N.Y.S.2d 799, 800 (Appel.Term, 2d Dept. (1976)), aff'd 41 N.Y.2d 1018, 395 N.Y.S.2d 626, 363 N.E.2d 1371 (1977), as follows:

"States have always had the right and power to regulate sexual conduct in order to promote the health, safety and morals of their inhabitants, and while the statute in question could have prohibited consensual sodomy in its entirety, it merely included within the definition of 'deviate sexual intercourse' the exception which would have been required in any case, under the decision in Griswold v. Connecticut, (381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510). Eisenstadt v. Baird (405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349) does not require any extension of the right to privacy to unmarried couples regarding the issue of sodomy. Eisenstadt merely extended the right of an unmarried person to have contraceptives made available to her based on her fundamental right to decide whether to bear or beget a child. No case has been reported or cited by defendant which would recognize a fundamental right to commit consensual sodomy. The only exception to the New York statute has been mandated by the Griswold decision based on the privacy attached to the marital relationship. Without this requisite base, to wit: marriage, there can be no exception under the rationale of Griswold." ¹

On appeal to the Court of Appeals the high court found itself in the position of affirming the remand of the Appellate Term only because of the inadequate record on appeal. Nevertheless, by way of Dictum, the court expressed reservations as to the validity of this statute centering on recently evolved constitutional limitations upon a State's power to intrude on private consensual sexual activity whether by married or unmarried persons. The Court noted that prosecution for consensual sodomy involved "questions of conduct traditionally treated as criminal and yet, When committed privately and circumspectly, suggestive of an unwarranted interference by the State with the lately recognized and inchoate 'penumbral' right of privacy (see e. g., Griswold v. Connecticut, 381 U.S. 479, 484-485, 85 S.Ct. 1678, 14 L.Ed.2d 510; Stanley v. Georgia, 394 U.S. 557, 564-568, 89 S.Ct. 1243, 22 L.Ed.2d 542," (41 N.Y.2d 1018, 395 N.Y.S.2d 626, 363 N.E.2d 1371) (Emphasis supplied.)

The underscored language of this Dictum is suggestive of a principle that only where consensual sodomists engage in their activity in private after taking due precautions to shield their conduct from public view, is there any valid basis to find a possible constitutional infirmity in a statute proscribing such conduct. In...