People v. Lenti

• Decision Date: 24 September 1964
• Citation: 253 N.Y.S.2d 9,44 Misc.2d 118
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Robert LENTI, Robert Pellegrino, Gaetano Aliseo and Frank Gannon, Defendants.
• Court: New York County Court

Page 9

253 N.Y.S.2d 9

44 Misc.2d 118

The PEOPLE of the State of New York, Plaintiff, v. Robert LENTI, Robert Pellegrino, Gaetano Aliseo and Frank Gannon, Defendants.

Nassau County Court.

Sept. 24, 1964.

William Cahn, Dist. Atty. of Nassau County, Mineola, for the People.

Ray M. Brand, Mineola, for defendants.

ALBERT A. OPPIDO, County Judge.

This is a motion for an order to inspect the Grand Jury Minutes upon which the instant indictment is founded and for an order dismissing the said indictment upon the following grounds:

1. Section 1030 of the Penal Law is vague and indefinite and, therefore, is invalid;

2. The alleged acts did not occur 'in or while attending' a public school or institution of learning;

3. The victims consented to the acts; and

4. The victims were accomplices as a matter of law and there was no corroboration of their testimony.

The indictment accuses the defendants of the crime of 'hazing', in violation of Section 1030 of the Penal Law of the State of New York, committed as follows:

'The defendants, ROBERT LENTI, ROBERT PELLEGRINO, GAETANO ALISEO and FRANK GANNON, each aiding and abetting the other and acting in concert, and accompanied by juveniles, in the County of Nassau, State of New York, on or about the 4th day of April, 1964, did wilfully and unlawfully engage in what is commonly called hazing, while attending an institution of learning in Union Free School District #11, Oceanside, County of Nassau, State of New York, to wit, the defendants, ROBERT LENTI, ROBERT PELLEGRINO, GAETANO ALISEO and FRANK GANNON, each aiding and abetting the other and acting in concert, and accompanied by juveniles, during an installation of pledges in an initiation known as 'Hell Night', for the purpose of inducting certain pledges into a fraternal organization, known as Omega Gamma Delta Fraternity, did wilfully, wrongfully and knowingly assault MICHAEL KALOGRIS, DANIEL WILLIAM ALEXANDER, JOHN THOMAS BRENNAN, DAVID DENNIS and RICHARD STEWART by (sic) striking them about the body and face with clenched fists, open hands, forearms and feet.'

The indictment also accuses the defendants of the crime of Assault, in the Third Degree, (five counts), in violation of Section 244 of the Penal Law, committed as follows:

'The defendants, ROBERT LENTI, ROBERT PELLEGRINO, GAETANO ALISEO and FRANK GANNON, each aiding and abetting the other and acting in concert, and accompanied by juveniles, in the County of Nassau, State of New York, on or about the 4th day of April, 1964, wilfully, wrongfully, unlawfully and knowingly, assaulted MICHAEL KALOGRIS, about the body and face with their clenched fists and open hands.'

The successive counts of the indictment similarly charge the defendants with the commission of Assault, in the Third Degree, upon DANIEL WILLIAM ALEXANDER, JOHN THOMAS BRENNAN, DAVID DENNIS and RICHARD STEWART.

The crux of the defendants' position, on this motion to dismiss the indictment, is that Section 1030 of the Penal Law, (Hazing), is unconstitutional. Specifically, it is said that the language of the statute is vague and indefinite. Section 1030 of the Penal Law provides:

'It shall be unlawful for any person to engage in or aid or abet what is commonly called hazing, in or while attending any of the colleges, public schools or other institutions of learning in this state, and whoever participates in the same shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than ten dollars nor more than one hundred dollars, or imprisonment not less than thirty days nor more than one year, or both at the discretion of the court.'

'Whenever any tattooing or permanent disfigurement of the body, limbs or features of any person may result from such hazing, by the use of nitrate of silver or any like substance, it shall be held to be a crime of the degree of mayhem, and any person guilty of the same shall, upon conviction, be punished by imprisonment for not less than three nor more than fifteen years.'

The defendants herein urge that there is neither a definition of the word 'hazing', nor a sufficient standard established by the statute by which this Court can properly ascertain what actions the Legislature intended to make criminal. A thorough search has not revealed any decision concerning hazing rendered by either a Court of the State of New York, a Court of any of our sister states or a Court of England. Moreover, the attention of the Court has not been directed to any reported case on the subject. Therefore, this Court, in order to determine the validity of Section 1030 of the Penal Law will interpret the statute in light of the pertinent and recognized principles of statutory construction.

It is clearly established and conceded by all that a criminal statute must be sufficiently explicit so that all those who are subject to the penalties thereunder may know what acts it is their duty to avoid. People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949, 146 N.E.2d 682; People v. Diaz, 4 N.Y.2d 469, 176 N.Y.S.2d 313, 151 N.E.2d 871; People v. Vetri, 309 N.Y. 401, 131 N.E.2d 568; Ann. 49 A.L.R.2d 456; International Harvester Co. of America v. Kentucky, 234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232. Moreover, the words in penal statutes are to be accorded their commonly accepted meaning in order that the citizenry may be apprised of exactly what is forbidden. People v. Glubo, 5 N.Y.2d 461, 186 N.Y.S.2d 26, 158 N.E.2d 699.

"Hazing' is defined to be striking, laying hands upon, treating with violence, or offering to do bodily harm to a new cadet with intent to punish or injure him; or other treatment of a tyrannical, abusive, shameful, insulting or humiliating nature. 158 Ky. 207, 164 S.W. 808.' Bouvier's Law Dictionary, p. 497, Col. 1 (1948). The above definition is taken from the case of Kentucky Military Institute v. Bramblet, 158 Ky. 205, 164 S.W. 808.

Webster's Third New International Dictionary, p. 1041, Col. 3 (1961) defines hazing in material part as, 'the subjecting (as a freshman or fraternity pledge) to treatment intended to put in ridiculous or disconcerting position.'

The verb, 'to haze', is defined as follows: 'to intimidate by physical punishment.' Id., Col. 2.

In People v. Diaz, supra, p. 470, 176 N.Y.S.2d p. 314, 151 N.E.2d p. 871, a prosecution under a city ordinance purportedly prohibiting 'loitering', the Court of Appeals, on the question of vagueness and indefiniteness of the ordinance stated:

'It is the rule that for validity a criminal statute must be informative on its fact (People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949 ) and so explicit that 'all men subject to their penalties may know what acts it is their duty to avoid' (United States v. Brewer, 139 U.S 278, 288, 11 S.Ct. 538, 541, 35 L.Ed. 190; People v. Vetri, 309 N.Y. 401, 131 N.E.2d 568). While the term 'loiter' or 'loitering' has by long usage acquired a common and accepted meaning (People v. Bell, 306 N.Y. 110, 115 N.E.2d 821), it does not follow that by itself, and without more, such term is enough to inform a citizen of its criminal implications and, by the same token, leave it open to arbitrary enforcement.' (Italics added.)

It is pertinent that the ordinance in the Diaz case did not adopt the commonly accepted meaning of 'loiter' or 'loitering' within its language. In the instant case, Section 1030 of the Penal Law does adopt the commonly accepted meaning of 'hazing' within the language of the statute.

In contradistinction to the Diaz case is International Harvester Co. of America v. Kentucky, 234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284. There the Court, by Justice Oliver Wendell Holmes, considering the criminal area of an anti-trust statute, said at p. 223, 34 S.Ct. at p. 855.

'We regard this decision as consistent with Nash v. United States, 229 U.S. 373, 377, 57 L.Ed. 1232, 1235, 33 Sup.Ct.Rep. 780, in which it was held that a criminal law is not unconstitutional merely because it throws upon men the risk of rightly estimating a matter of degree * * *. It goes no further than to recognize that, as with negligence, between the two extremes of the obviously illegal and the plainly lawful there is a gradual approach, and that the complexity of life makes it impossible to draw a line in advance without an artificial simplification that would be unjust. * * *'

It is this Court's opinion that the language of Justice Holmes is applicable to the case at bar. 'Hazing' is a word, which incorporates treatment such as the wearing of a 'beanie cap' to the permanent disfigurement of the body. (See paragraph two of Section 1030 of the Penal Law). See also Grossman v. Baumgartner, 40 Misc.2d 221, 242 N.Y.S.2d 910, at 917 (1963); People v. Miller, 31 Misc.2d 1067, 221 N.Y.S.2d 430, at 432 (1961). It would have been an impossible task if the legislature and attempted to define hazing specifically. Fraternal organizations and associations have never suffered for ideas in contriving new forms of hazing. Apparently, the distinguished gentlemen of the New York State Bar, and the members of the Temporary State Commission on Revision of the Penal Law and Criminal Law, in the Proposed New York Penal Law felt that there was no need to amend or repeal the 'hazing' statute. The proposed statute, Section 250.10 provides: 'A person is guilty of harrassment when, with intent to harass, annoy or alarm another person: * * * 11. As a student in a school, college, or other institution of learning, he engages in conduct commonly called hazing.' (Italics for emphasis). Therefore, the present statute which prohibits hazing, Section 1030 of the Penal Law, goes no further than to recognize that as with other complex areas of life, between the polar extremities, the wearing of a 'beanie cap' and the permanent disfigurement of the human body, it is impossible to draw an arbitrary line in advance defining what is obviously legal and illegal. Such...