People v. L.
| Decision Date | 16 April 1971 |
| Citation | 320 N.Y.S.2d 456,66 Misc.2d 191 |
| Parties | The PEOPLE of the State of New York v. Robert J.L., Defendant. |
| Court | New York District Court |
The defendant is charged with a violation of Section 240.36 of the Revised Penal Law, which provides that a person is guilty of loitering when he loiters or remains in any place with one or more persons for the purpose of unlawfully using or possessing a dangerous drug.
The charge arises out of an incident which occurred on June 16, 1970 at about 11:40 p.m. This defendant with five other boys was sitting around a picnic table on the patio in the backyard of a private residence. They had musical instruments and were playing music which disturbed the neighbors and the police were called. When the police arrived they found the boys talking and saw a pipe with smoke emanating therefrom on the table. The pipe contained a small amount of hashish. The defendant and the others were arrested and charged with a violation of Section 240.36 of the Revised Penal Law. The defendant was tried by this Court, without a jury, as a Youthful Offender.
It is the contention of the defense that the words of the statute 'any place' mean any public place and that a motion to dismiss should be granted on the grounds that the alleged acts occurred on private property, and therefore the People have failed to prove a prima facie case. It is the further contention of the defense that the statute is so vague and indefinite that it should be held unconstitutional.
The interpretation of this statute is one of first impression. In the revision of the New York Criminal Law, former Section 1533(5) was redrafted and incorporated in the general loitering statute as Section 240.35, Subdivision 9, which states that a person is guilty of loitering when 'he loiters or remains in any place with one or more persons for the purpose of unlawfully using or possessing a dangerous drug.' Effective September 1, 1968 this offense was removed from Section 240.35, the general loitering statute, and made a Class B misdemeanor in a separate Section 240.36 of the Revised Penal Law.
It is the opinion of this Court that if the Bartlett Commission and the Legislature adopting its proferred statute intended that Section 240.36 proscribe virtually the same conduct as former Section 1533(5), it would have followed the format and verbiage of that section which spelled out in specifics the places covered by the statute, to wit:
'A person who (5) * * * loiters about any stairway, staircase, hall, roof, elevator, cellar, courtyard or any passageway of a building' etc.
Instead the Commission selected the words 'any place.' It may be argued that it would have been better draftsmanship for the statute to have utilized the language 'any place, public or private.' However, the words 'any place' are clear and precise in themselves. They mean 'without boundary,' 'anywhere,' They cannot be interpreted to mean public place without the Legislature having added words of limitation or...
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