People v. Merolla

• Citation: 9 N.Y.2d 62,211 N.Y.S.2d 155,172 N.E.2d 541
• Parties: , 172 N.E.2d 541 PEOPLE of the State of New York, Respondent, v. Angelo MEROLLA, Appellant.
• Decision Date: 12 January 1961
• Court: New York Court of Appeals

Page 155

211 N.Y.S.2d 155

9 N.Y.2d 62, 172 N.E.2d 541

PEOPLE of the State of New York, Respondent, v. Angelo MEROLLA, Appellant.

Court of Appeals of New York.

Jan. 12, 1961.

Frank Serri and Henry V. Scardapane, Brooklyn, for appellant.

Edward S. Silver, Dist. Atty., Brooklyn (William Sonenshine, Brooklyn, and Aaron E. Koota, New York City, of counsel), for respondent.

William P. Sirignano and Irving Malchman, New York City, for Waterfront Commission of New York Harbor, amicus curiae.

FROESSEL, Judge.

On the morning of September 30, 1958, three investigators attached to the New York Waterfront Commission, New York Harbor, and a detective from the Kings County District Attorney's office were stationed upon a promenade overlooking Pier No. 2 at the Brooklyn waterfront. They observed the activities of defendant from 7:05 to 7:40 A.M. He was standing below them but about 100 feet distant, in front but somewhat to the side of Pier No. 2. On that pier was erected an enclosed structure, with an open ramp immediately alongside, jutting out into the water. The area where defendant was standing was used as a waterfront facility for loading and unloading merchandise. It was known as the 'farm area', and 'considered part of the pier area' as well as part of the Port of New York District (see Port of New York Authority Compact, art. II; L.1921, ch. 154). A wire fence separated this farm area from the adjoining property directly in front of Pier No. 2. That area has since been built upon and fenced off.

During the period of observation, 12 men dressed in longshoremen's attire approached defendant at separate intervals, had conversations 'in close contact' with him, and 9 of the 12 gave him money in the form of bills. Each of the 12, after completing his conversation or transaction with defendant, proceeding to enter upon the pier. It was observed that defendant made notations on some of the bills given him, and, additionally, upon a slip of white paper.

After defendant was thus observed for over half an hour, two of the investigators and the detective entered their car and drove down to the pier level. One of them, Investigator Donato, there approached defendant and, upon interrogation, the latter stated that he was selling women's shoes to friends for the Concord Shoe Company at $3.50 a pair. When asked by the investigator for specific names of the individual purchasers, defendant stated that 'he hadn't started to sell any shoes as yet'.

A search of defendant's automobile following this conversation disclosed neither 'shoes' nor other 'merchandise'. Defendant's person was also searched and $57 in bills of various denominations and $2.50 in coins were found. Four of the bills bore penciled figure notations. The white slip of paper, however, was not found.

Immediately after this episode at the waterfront, defendant was taken to the office of the Brooklyn District Attorney's Racket Squad and was interrogated. When there asked if he had had any conversations with the owner of the shoe company for which he was allegedly selling shoes, defendant stated, 'Not yet'.

At the trial, the owner of the Concord Shoe Company, one Irving Shore, a brother-in-law of defendant, testified that the latter was not in his employ on September 30, 1958, nor prior thereto, and, further, that he had not seen nor had conversation with defendant since the preceding Christmas, about nine months before. Shore did state, however, that he had spoken with his sister-in-law prior to September 30, 1958, and told her to have defendant 'come up' and he would 'give him some accounts to go in with samples and he will sell'. The accounts which Shore had in mind were Brooklyn and Manhattan department stores; however, although he was a manufacturer and did not retail his merchandise, he had no objection if defendant were to sell to individuals on a retail basis.

Upon the foregoing record based upon the testimony of two of the investigators present at the scene, and the witness Shore, the only witnesses at the trial defendant was found guilty (with one dissenting vote) of violating section 7 of the Waterfront Commission Act (L.1953, ch. 882, as amd. by L.1957, ch. 188), which provides: 'No person shall, without a satisfactory explanation, loiter upon any vessel, dock, wharf, pier, bulkhead, terminal, warehouse, or other waterfront facility or within five hundred feet thereof in that portion of the Port of New York district within the state of New York.' Defendant was sentenced to 60 days in the workhouse.

Defendant on this appeal challenges the propriety of his conviction on three grounds: It is urged that the statute is unconstitutional; that the evidence was insufficient to prove guilt beyond a reasonable doubt; and that prejudicial error was committed at the trial in regard to the offer in evidence, without objection, of an order of the Waterfront Commission denying defendant's application for registration as a long-shoreman.

In this opinion we shall treat only with the constitutional question presented. Defendant's other points, which we find lacking in merit, do not warrant discussion. With regard to the constitutional question, defendant maintains that the statute is vague, ambiguous, and lacking in definite standards. More particularly, defendant challenges the provisions of the statute confining the offense to those loitering 'without a satisfactory explanation' and 'within five hundred feet' of a waterfront facility.

This court, when called upon in the past to resolve challenges of a similar constitutional nature, has consistently recognized that the term 'loiter' or 'loitering' is one of common and accepted meaning (People v. Bell, 306 N.Y. 110, 113, 116-117, 115 N.E.2d 821, 822, 823-824; People v. Diaz, 4 N.Y.2d 469, 470, 176 N.Y.S.2d 313, 314; People v. Johnson, 6 N.Y.2d 549, 552, 190 N.Y.S.2d 694, 696). Our cited decisions indicate, however, that notwithstanding the well-understood meaning acquired through extended usage of the term loiter or loitering, when taken 'by itself, and without more', it is not 'enough to inform a citizen of its criminal implications and, by the same token, leave it open to arbitrary enforcement' (People v. Diaz, supra, 4 N.Y.2d at page 470, 176 N.Y.S.2d at page 315). The clarity and certainty necessary to satisfy constitutional requirements may be acquired, however, by reference to the context in which the term is used.

Thus, in the Diaz case, supra, a statute dealing with loitering, without more, on public streets at large was declared constitutionally void. The statute provided: 'No person shall lounge or loiter about any street or street corner in the City of Dunkirk.' The term loiter or loitering as 'use(d)' in the statutory context failed 'to point up the prohibited act, either actual or threatened'. In other words, distinction could not be drawn between 'conduct calculated to harm and that which is essentially innocent' (4 N.Y.2d at page 471, 176 N.Y.S.2d at page 316).

In the Johnson case, supra, however, the statutorily proscribed loitering did not involve public streets but related instead to public school buildings and grounds. Such premises, we declared, were of a 'restricted public nature'; and the statute prohibiting loitering, when read 'in the light of the nature of a school building', satisfied constitutional requirements (6 N.Y.2d at page 552, 190 N.Y.S.2d at page 696).

Similarly, in People v. Bell, supra, where loitering at large on public streets was not at issue, but rather loitering that the apparent legislative facilities, we upheld the constitutionality of the statute. In dealing with a specific facility such as a railroad or subway, the proscribed misconduct was readily ascertainable, and that essentially innocent was excludable from the statutory ambit. We reasoned that the apparnet legislative purpose in...