People v. Loday
| Citation | 35 N.Y.S.3d 633,2016 N.Y. Slip Op. 26205,52 Misc.3d 996 |
| Parties | The PEOPLE of the State of New York v. Karma LODAY, Defendant. |
| Decision Date | 27 May 2016 |
| Court | New York Criminal Court |
The Legal Aid Society, by Melissa Kaplan, Esq.; District Attorney, N.Y. County, by ADA Laurie McGuire.
Defendant is charged with one count of Unlicensed General Vendor (AC § 20–453
). Defendant moves in an omnibus motion for an order:
1) dismissing the accusatory instrument because AC § 20–453
is unconstitutional as applied; or in the alternative, for an order
2) dismissing the accusatory instrument as contrary to a New York City administrative rule and the legislative intent of the City Council; or in the alternative, for an order
3) dismissing the accusatory instrument for facial insufficiency pursuant to CPL Sections 100.40, 170.30(1)(a) and 170.35(1)(a) ;
4) precluding the People from introducing evidence of any statement or identification testimony at trial for which CPL 710.30 notice has not been given;
for pretrial discovery and for a bill of particulars; and
7) reserving the right to make additional motions as necessary.
The People oppose the motion.
Defendant argues that the Russian nesting dolls, or matryoshki, he was allegedly selling are individually hand-painted Russian folk art pieces for which a vending license is not required, and are not souvenirs, collectibles or other trinkets for which a vending license would be required. He maintains that they are symbols of Russian culture and constitute art, the sale of which is protected by the First Amendment and is outside the licensing requirement of AC § 20–453
. Defendant also argues that the accusatory instrument is facially insufficient and should be dismissed because it fails to allege sufficiently the “public space” element of AC § 20–453.
The People counter that there is no evidence that the designs here vary in complexity or difficulty of production and that the dominant purpose of these nesting dolls is to serve as decoration or playthings. Since the People maintain that the primary purpose of the nesting dolls is utilitarian and not expressive, they assert that the Russian nesting dolls do not enjoy First Amendment protection. They also argue that even if the court determines that First Amendment protection applies to the nesting dolls, AC § 20–453
is a reasonable time, place, and manner restriction on the sale of the dolls, and therefore it is constitutional as applied to this defendant (see People's Aff. at 9). Regarding facial insufficiency, the People contend that the accusatory instrument sufficiently alleges the “public space” element of the statute and is facially sufficient.
Defendant is charged with one count of Unlicensed General Vendor (AC § 20–453
). The accusatory instrument states in pertinent part as it relates to an occurrence at 12:00 p.m. on December 5, 2015, across from 10 Columbus Circle, New York, New York:
Unlicensed General Vendor (AC § 20–453
) provides:
... 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.
AC § 20–452(b) defines “general vendor” as “a person who hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services, including newspapers, periodicals, books, pamphlets or other similar written matter in a public space.”
Defendant argues that AC § 20–453
cannot be constitutionally enforced against him because the Russian nesting dolls, or matryoshki, are expressive art that is entitled to First Amendment protection.
In Bery v. City of New York, 97 F.3d 689, 695–96 (2nd Cir.1996)
, the Second Circuit held, regarding a request for a preliminary injunction, that the selling of four specific art forms, namely, paintings, photography, prints and sculpture, was subject to constitutional protection. The Second Circuit also determined preliminarily that plaintiffs could likely demonstrate that AC § 20–453
did not pass the intermediate scrutiny test, which requires that statutory classifications be substantially related to an important governmental objective. New York City then chose to enter into a voluntary permanent injunction prohibiting it from “enforcing Administrative Code § 20–453 against any person who hawks, peddles, sells, leases or offers to sell or lease, at retail, any paintings, photographs, prints and/or sculpture, either exclusively or in conjunction with newspapers, periodicals, books, pamphlets or other similar written material or other similar written matter, in a public space [.]” (Permanent Injunction on Consent dated Oct. 21, 1991, Bery v. City of New York, No. 94 Civ. 4253 [S.D.N.Y. Oct. 30, 1997]; see also
Mastrovincenzo v. City of New York, 313 F.Supp.2d 280, 283 [S.D.N.Y.2004] ). Consequently, in New York City, people selling items that fall into those four specific categories are exempt from the license requirement of AC § 20–453. Everything else, being “potentially expressive” objects may constitutionally be made subject to licensure as a reasonable time, place or manner restriction (Mastrovincenzo, at 100, 102).
When, as is the case here, the visual expression cannot be clearly categorized as one of the four categories protected by the Bery injunction, the court “must conduct a case-by-case evaluation to determine whether the work at issue is sufficiently expressive” (id. at 93). The Second Circuit in Mastrovincenzo adopted a two-part test to determine if an item constituted visual expression protected by the First Amendment.
First, the court should decide whether the item could be objectively understood to have any expressive or communicative elements (id. at 95). Second, the court must determine whether that item also has a common non-expressive purpose of utility (id. ).
Given defendant's own description that the items being sold are “dolls,” it is clear that these items are not included in the four specific categories of visual expression identified by the court in Bery, in that they are not “paintings1 , photographs, sculptures2 or prints.” Therefore, presumptive First Amendment protection does not apply to the items here.
In view of defendant's general descriptions of the matryoshki as “individually hand-painted with traditionally thematic folk art ... many of which bear the signature of the artist at their base” (Def's Mot. at 9, para. 17), the photos of the matryoshki (Def's Mot., Exh. H), and the historical meaning of the pieces as Russian folk art, this court finds that the Russian nesting dolls here are expressive (see City of New York v. Rounovski, Envtl. Control Bd., Appeal No. 1000222 [2010] []; see also People v. Rounovski, 2011CN000662 [Crim.Ct., New York County, Whiten, J., 5/26/2011] [also finding matryoshki are art within the scope of the Bery permanent injunction] ). This court additionally finds that, although described as “dolls,” the predominant purpose of the Russian nesting dolls is for visual expression and aesthetics.
Nonetheless, since Administrative Code § 20–453 leaves open to defendant “ample alternative channels” of communication, its enforcement here does not violate his “First Amendment rights” (Bery, citing Mastrovincenzo, at 100–102). Since the vending law does not ban the sale or display of Russian nesting dolls altogether, it is properly analyzed as a form of time, place and manner regulation. “Content-neutral” time, place, and manner of protected speech laws are constitutionally acceptable provided they serve a significant governmental interest and do not unreasonably limit alternative avenues of communication.3 AC § 20–453
is such a law. Here, the law was narrowly tailored to serve the primary purpose of reducing urban congestion on streets and sidewalks, yet it allowed for multiple alternative venues for communication, such as stores, trade shows, homes, galleries, and the internet (see
Mastrovincenzo v. City of New York, 435 F.3d 78, 100–101 [2d Cir.2006] [] ). Defend...
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