People v. Munoz

• Decision Date: 12 January 1961
• Citation: 211 N.Y.S.2d 146,172 N.E.2d 535,9 N.Y.2d 51
• Parties: , 172 N.E.2d 535 PEOPLE of the State of New York, Respondent, v. Miguel A. MUNOZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 146

211 N.Y.S.2d 146

9 N.Y.2d 51, 172 N.E.2d 535

PEOPLE of the State of New York, Respondent, v. Miguel A. MUNOZ, Appellant.

Court of Appeals of New York.

Jan. 12, 1961.

Harold J. Rothwax and Anthony F. Marra, New York City, for appellant.

Isidore Dollinger, Dist. Atty., New York City (Bertram R. Gelfand, New York City, of counsel), for respondent.

Nanette Dembitz, New York City, for New York Civil Liberties Union, amicus curiae.

VAN VOORHIS, Judge.

Appellant stands convicted of violating section 436-5.2 of the New York City Administrative Code for having had in his possession, in his right pocket, an ordinary two-bladed small pocket penknife. Appellant contends that carrying a penknife cannot be made a crime, that this section of the Administrative Code constitutes an abuse of the police power of the State and that its language renders it void, in any event, for uncertainty. This local law was then worded as follows:

' § 436-5.2 Possession of knives or instruments. a. Legislative findings. It is hereby declared and found that the unlawful use by persons under twenty-one years of age in public places, streets and parks of the city, of knives and sharp pointed or edged instruments is a menace to the public health, peace, safety and welfare of the people of the city; that the possession in public places, streets and parks of such knives or instruments by such persons has resulted in the commission of many homicides, robberies, maimings and assaults of the upon the people of the city; that this condition encourages and fosters the commission of crimes, and contributes to juvenile delinquency, youth crime and gangsterism; that unless the possession of carrying by persons under twenty-one years of age in public places, streets and parks of the city of such knives or instruments is prohibited, there is danger of an increase in crimes of violence, teen-age gang wars and other conditions detrimental to public peace, safety and welfare; that the necessity for legislative intervention by the enactment of the provisions of this section is imperative and is hereby declared as a matter of legislative determination.

'b. It shall be unlawful for any person under the age of twenty-one years to carry on his person or have in his possession, in any public place, street, or part any knife or sharp pointed or edged instrument which may be used for cutting or puncturing.

'c. Such person shall not be in violation of this section if his possession of such knife or instrument is then necessary for his employment, trade or occupation, or if such possession is for use while he is engaged in or is proceeding to or returning from a place of hunting, trapping or fishing, and wherever required, is also carrying a currently valid license issued to him under the provisions of section one hundred eighty of the conservation law, or if such person is a duly enrolled member of the Boy Scouts of America or a similar organization or society and such possession is necessary to participate in the activities of such organization or society, or if the said knife or instrument is carried under circumstances that tend to establish that its possession is for a lawful purpose, not however to include self-defense or amusement.

'd. Violation of this section shall be an offense punishable by a fine of not more than fifty dollars, or by imprisonment not exceeding thirty days, or by both such fine and imprisonment.'

This is a broad enactment designed to meet a limited though serious evil. Its validity depends not upon the object toward which it is directed but on the method by which it is sought to be attained. We shall first consider appellant's point that it is void for uncertainty. 'Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited. They must afford some comprehensible guide, rule, or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements.' People v. Grogan, 260 N.Y. 138, 145, 183 N.E. 273, 276, 86 A.L.R. 1266, per Crane, J.; People v. Shifrin, 301 N.Y. 445, 447, 94 N.E.2d 724, 725; People v. Diaz, 4 N.Y.2d 469, 176 N.Y.S.2d 313. The vice in statutory law of this nature is that it conceals what persons are included and what acts are prohibited (United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200). As was remarked by Mr. Justice Frankfurter in Winters v. People of State of New York, 333 U.S. 507, 540, 68 S.Ct. 665, 682, 92 L.Ed. 840: 'Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense.'

This section of the Administrative Code is too vague and too general to indicate what persons are included or what acts are prohibited (United States v. Cardiff, supra). Carrying a pocket penknife or many of the other articles included in this section is not evil in itself. This is not a case where conceptions of moral guilt can furnish some measure of the legislative intent. There is no moral guilt in carrying a penknife, apart from this local law. Guilt, if any, consists entirely in violation of a legislative fiat. Therefore, it is necessary that the elements of the offense be spelled out in words even more explicitly, so that the citizen may receive unequivocal warning before conduct otherwise innocent be made the cause of fine or inprisonment (People v. Shifrin, supra). The first uncertainty in section 436-5.2 of the Administrative Code arises from not knowing what is covered by the description of prohibited instruments. Subdivision b states that it shall be unlawful for minors to carry 'any knife or sharp pointed or edged instrument which may be used for cutting or puncturing.' This has been construed by the officers charged with its enforcement to include more than instruments which would ordinarily be termed weapons, as is shown by the circumstances that appellant has been prosecuted and convicted for carrying a penknife. The theory is that even a penknife could be used at close range to maim or perhaps kill another person. Eyes could, of course, be put out by 'sharp pointed' instruments such as fountain pens, nails or a variety of other trinkets or gadgets that could be carried on the person. Under opportune circumstances, any device might be used to maim or kill, which can even be accomplished by using the feet or hands with no implement at all. Shakespeare pointed out that death could be caused by 'a bare bodkin.' This section of the Administrative Code would prevent a minor from carrying a bodkin in the streets, it may be assumed, whether a bodkin be a poniard or a needle, at least, if he were doing so for amusement or in self-defense. It is more difficult to answer what would happen, under the language of this enactment, if be bought knitting needles, let us suppose, in a department store, and was carrying them home to give to his mother or sister. What would happen, it may be wondered, if the sister, being also a minor, bought knitting needles herself and took them toward home in order to engage in this familiar feminine pastime? Would she be guilty of a violation? The language does not distinguish between the sexes. A knitting needle is a pointed instrument that may be used for puncturing. It can be as dangerous an implement in delinquent hands as a penknife or a fountain pen. A safety razor is a sharp edged instrument that might be used for cutting. Are youths of 19 or 20 years prohibited from buying safety razors, nail files, or other potentially dangerous toilet articles if they are carried home on the person through the streets? Enough has been said to indicate the vagueness of the language which attempts to define what kinds of instruments are covered. It is not limited to daggers, poniards nor even jackknives. The definition has no boundary excluding from the section's coverage the most commonly used and innocently possessed devices of everyday life.

It is said that the language purports to forbid carrying such articles only under certain circumstances. It excludes instances where 'the said knife or instrument is carried under circumstances that tend to establish that its possession is for a lawful purpose, not however to include self-defense or amusement.' This language does not held to save the validity of the section, but only renders it more obscure and contradictory. Except for self-defense or amusement (a boy could not carry a penknife for self-protection, nor in order to whittle or play mumble-the-peg), this section does not purport to prohibit carrying knives or any kind of instrument for a lawful purpose. Carrying a penknife is lawful, unless this section renders it unlawful. The net result, when analyzed, is that this section prohibits what is lawful only if it is unlawful. This is self-contradictory. No one can know that it means.

The section does not say that such instruments shall be presumed to have been carried in the streets by minors with intent to commit homicide, robbery, maiming or assault, unless the accused shall demonstrate that he had the article on his person to serve some apecial purpose that is lawful, e. g., that he carried a penknife in order to sharpen pencils to do his schoolwork. If the draftsman of this local law had included carrying the article with criminal intent, there would have been less difficulty in sustaining it as subdivision 11 of section 722 of the Penal Law, Consol.Laws, c. 40, was sustained in People v. Pieri, 269 N.Y. 315, 199 N.E 495 on the basis of performing the acts forbidden while harboring an evil intent. There, intent was an ingredient in the offense. Here, upon the other hand, necessity of proving criminal intent by the prosecution was exactly what the draftsman of this local law aimed to avoid. He sought to make this alleged...