People v. McNamara
| Citation | 585 N.E.2d 788,578 N.Y.S.2d 476,78 N.Y.2d 626 |
| Parties | , 585 N.E.2d 788 The PEOPLE of the State of New York, Appellant, v. Cheryl McNAMARA, Alma Harrison, Rose Marie Terrell and Martyn D. Hill, Respondents. |
| Decision Date | 19 December 1991 |
| Court | New York Court of Appeals |
A person "is guilty of public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed." (Penal Law § 245.00.) Respondents were separately charged with having violated section 245.00(a) by committing sexual acts in parked cars in the City of Buffalo. The sole question presented by this People's appeal is whether the informations sufficiently alleged that lewd conduct occurred in a "public place" within the meaning of the statute. No constitutional issue is raised, nor is the characterization of respondents' conduct as lewd challenged.
We agree with respondents that the factual allegations were insufficient to establish the statutory element of a "public place," and therefore affirm County Court's order dismissing the prosecutions.
The information against respondent Cheryl McNamara charged that on September 27, 1989, at or about 1:50 A.M., "while at 291 15th Street, a public place * * * in the rear seat of a 1989 Ford" she exposed private parts of her body while engaged in sexual intercourse with another person, and that the "vehicle in which the defendant was seated, was parked in a well lit area, and its interior was readily visible to passer-byers."
Separate informations filed against respondents Rose Marie Terrell and Martyn D. Hill charged that on December 5, 1989, "while at 34 Colorado, a public place * * * seated in a 1988 Ford Bronco II" respondent Terrell committed a sexual act upon respondent Hill, and that those "actions were being committed on a public residential street." The information against respondent Alma Harrison charged that on December 5, 1989, at or about 12:45 A.M., "while at 70 Colorado, a public place * * * in the passenger seat of a GMC Jimmy truck" respondent committed a sexual act upon another person while "parked in a well lit residential area."
Buffalo City Court dismissed all four informations. The McNamara information was deemed insufficient because it alleged "no facts which would show that the defendant intentionally exposed the private or intimate parts of her body in a lewd manner, with intent that she be so observed." The court also stated that it was "preposterous" that the lewd exposure charged in the information had as its purpose "public entertainment, in turn to titillate the defendant." The court dismissed the Harrison information because the allegation that the acts occurred in a vehicle parked in a well-lit residential area did not establish a "public place" under Penal Law § 240.00. The Terrell and Hill informations were found insufficient on the grounds that the area of occurrence was not a "public place," and the prosecution was an attempt to criminalize consensual sodomy (citing People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936). 1
After consolidating the four cases for purposes of the People's appeal, the Erie County Court affirmed the dismissals, apparently on the ground that the informations failed to allege facts supporting the conclusion that the acts complained of occurred in public places. We now affirm.
To be facially sufficient, the factual part of an information must meet two requirements: the allegations must provide reasonable cause to believe that the defendant committed the offense, and the nonhearsay allegations must establish, if true, every element of the offense charged (CPL 100.40[1][b], [c]; People v. Alejandro, 70 N.Y.2d 133, 136-137, 517 N.Y.S.2d 927, 511 N.E.2d 71). This case calls upon us to determine whether the informations charging respondents with public lewdness were facially defective because they failed to establish the statutory element that respondents' acts were committed in a "public place" (Penal Law § 245.00[a].
At the core of this statutory interpretation question is the relevance of respondents' intent concerning whether a place is "public." The statutory requirement of intent to expose private or intimate bodily parts lewdly, or to commit a lewd act, is not in question.
The People contend that the informations satisfied the statute by alleging that respondents engaged in sexual activity in parked cars on Buffalo streets, and no intent that one be observed is required. Respondents, by contrast, urge that "public place" as used in this statute imports such a degree of "publicness" as to require intent that they be observed or reckless disregard that they might be observed. City Court, in dismissing the McNamara and Hill informations, relied on an even broader understanding of intent requiring not only intent to be seen, but a purpose "for public entertainment, in turn to titillate the defendant." As these differing understandings of "public place" demonstrate, in the context of this statute the phrase has no single readily ascertainable "plain meaning."
Penal Law § 245.00 does not itself define "public place," nor does the remainder of article 245--in which the section is situated--define the term, even though the words "public place" appear in other article 245 offenses (Penal Law §§ 245.01, 245.02).
The People ask us to adopt the definition found in the immediately preceding article--article 240, "Offenses Against Public Order." 2 However, section 240.00 specifies that its definitions are "applicable to this article," signalling at the outset that they are inapplicable to article 245 ("Offenses Against Public Sensibilities"), which is directed to offenses against "public sensibilities," not "public order," and proscribes different conduct (see, Hechtman, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 240.00, at 249 [1980]. We likewise reject the People's argument that the definition of "public place" should be drawn from Fourth Amendment decisions holding that there is a diminished expectation of privacy in automobiles. Plainly, the existence of a diminished expectation of privacy does not transform the interior of an automobile into a "public place."
While not offering an explicit definition of "public place," section 245.00 read in its entirety does suggest that mens rea in the form of intent to be observed, reckless disregard of observation, or intent to arouse or gratify sexual desires by means of public observation is not required by section 245.00(a). The crime is defined as a lewd exposure or act "(a) in a public place, or (b) in private premises under circumstances in which [the actor] may readily be observed from either a public place or from other private premises, and with intent that he be so observed." The placement of the phrase "with intent that he be so observed" after subdivision (b) rather than at the start of the section indicates that intent to be observed is required only in cases involving private premises, not public places. The structure of the section thus tends to contradict respondents' claim that lewd conduct is not performed in a "public place" unless the actor intends to be observed or has some other culpable mental state regarding observation by others.
This conclusion is borne out by the legislative history, which is additionally instructive in determining what factual allegations are necessary to satisfy the statute. In approaching legislative history, we bear in mind that statutes "punishing indecent exposure, though broadly drawn, must be carefully construed to attack the particular evil at which they are directed." (People v. Price, 33 N.Y.2d 831, 832, 351 N.Y.S.2d 973, 307 N.E.2d 46.)
Penal Law § 245.00 was part of an over-all revision of the Penal Law--based on recommendations by the Temporary State Commission on Revision of the Penal Law and Criminal Code--which reorganized specific offenses and grouped like offenses together. 3
As originally enacted, article 245 consisted of two offenses: public lewdness and offensive exhibition. An amendment prior to its effective date added two more--exposure of a female and promoting the exposure of a female (L.1967, ch. 367; now "exposure of a person" and "promoting the exposure of a person" [Penal Law §§ 245.01, 245.02]. Finally, addition of public display of offensive sexual material in 1971 (Penal Law §§ 245.10, 245.11) gave the article its present form.
Viewing these separate components of article 245 together, it is obvious that article 245 was aimed at protecting the public--in essence, "unsuspecting, unwilling, nonconsenting, innocent, surprised or likely-to-be offended or corrupted types of viewers" (People v. Conrad, 70 Misc.2d 408, 410, 334 N.Y.S.2d 180)--from the sight of offensive activities and materials (People v. Hollman, 68 N.Y.2d 202, 207, 507 N.Y.S.2d 977, 500 N.E.2d 297 [Penal Law § 245.01]; People v. Craft, 149 Misc.2d 223, 225, 564 N.Y.S.2d 695 [same]; see also, Donnino, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 245.00, at 296 [1989]. Thus it is clear that the evil at which section 245.00(a) is directed is the offense created by the proscribed displays rather than the culpable mental state of persons engaging in them. When the actor's intent was to be relevant--as in the prosecution of lewd acts in private places--the Legislature made that express (Penal Law § 245.00[b], added by L.1968, ch. 748).
Respondents urge that a draft of the revised Penal Law...
To continue reading
Request your trial
-
People v. Lino, Docket Nos. 92352
...and apply the statute [banning lewd public conduct] in a manner that comports with its purpose." People v. McNamara, 78 N.Y.2d 626, 633, 578 N.Y.S.2d 476, 585 N.E.2d 788 (1991). The New York Court of Appeals held that New York's public lewdness statute applies only where the "objective circ......
-
Green v. Georgia
...of the public would likely be subjected to the private sexual acts involved in this case. See, e.g., People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d 788, 793 (1991) (holding that “public lewdness” occurs where “the objective circumstances establish that lewd acts committed [......
-
People v. Fernandez
...the definition is applicable to a specific article, the definition is inapplicable to other articles (see, People v. McNamara, 78 N.Y.2d 626, 630, 578 N.Y.S.2d 476, 585 N.E.2d 788; People v. Neumann, 51 N.Y.2d 658, 665, 435 N.Y.S.2d 956, 417 N.E.2d ...
-
Green v. State
...of the public would likely be subjected to the private sexual acts involved in this case. See, e.g., People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d 788, 793 (1991) (holding that “public lewdness” occurs where “the objective circumstances establish that lewd acts committed [......
-
Narrative and jurisprudence in state courts: the example of constitutional challenges to sex conduct regulation.
...dismissed, 414 U.S. 991, and reh'g denied, 414 U.S. 1138 (1974). But see State v. J.O., 355 A.2d 195 (N.J. 1976); People v. McNamara, 585 N.E.2d 788 (N.Y. 1991); People v. Onofre, 415 N.E.2d 936 (N.Y. 1980). (66) See, e.g., Knowlton v. State, 382 N.E.2d 1004, 1006-07 (Ind. 1978); People v. ......
-
Privacy, property, and public sex.
...instead, there has to be "some likelihood that third persons be present and be offended by the conduct."). See also People v. McNamara, 585 N.E.2d 788, 792-93 (N.Y. 1991) (noting, in case involving alleged public lewdness, that "[o]bviously, places that are public in a property sense can be......