People v. Nelson

• Decision Date: 24 March 1987
• Citation: 506 N.E.2d 907,514 N.Y.S.2d 197,69 N.Y.2d 302
• Parties: , 506 N.E.2d 907 The PEOPLE of the State of New York, Respondent, v. Willie NELSON, Terry Jones, Carol Rogers, Barbara Chambers and Larry Bobb, Appellants. The PEOPLE of the State of New York, Respondent, v. Michael TYLER, Appellant. The PEOPLE of the State of New York, Respondent, v. Freddy ROBINSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 197

514 N.Y.S.2d 197

69 N.Y.2d 302, 506 N.E.2d 907

The PEOPLE of the State of New York, Respondent, v. Willie NELSON, Terry Jones, Carol Rogers, Barbara Chambers and Larry Bobb, Appellants.

The PEOPLE of the State of New York, Respondent, v. Michael TYLER, Appellant.

The PEOPLE of the State of New York, Respondent, v. Freddy ROBINSON, Appellant.

Court of Appeals of New York.

March 24, 1987.

Michele Maxian and Caesar D. Cirigliano, New York City, for appellants in the first above-entitled action.

Steven C. Krane, New York City, for appellant in the second above-entitled action.

Jane K. Falcon and Philip L. Weinstein, New York City, for appellant in the third above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Mark Dwyer and John G. Martin, New York City, of counsel), for respondent in the first above-entitled action.

Robert M. Morgenthau, Dist. Atty. (John G. Martin and Mark Dwyer, New York City, of counsel), for respondent in the second above-entitled action.

John J. Santucci, Dist. Atty. (Gary Seidel and Jeanette Lifschitz, Kew Gardens, of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

PER CURIAM.

In People v. Nelson et al., each of the defendants was charged with jostling (Penal Law § 165.25) ^* in Criminal Court informations. Police officers allegedly observed each of them patting down victims' pockets, reaching to purposely touch handbags, putting their hands into other people's pockets or crowding victims or acting as lookouts while their companions took these actions. On defendants' motions, Criminal Court, 127 Misc.2d 820, 487 N.Y.S.2d 674, dismissed the informations, holding the jostling statute void for vagueness. The Appellate Term, 132 Misc.2d 882, 506 N.Y.S.2d 935, reversed, denied defendants' motions to dismiss and reinstated the informations.

Defendant Tyler was convicted of jostling after a jury trial. The evidence presented to the jury indicated that defendant had placed his hands inside two of the pockets of a man who was lying drunk and asleep on a subway platform. The Appellate Term affirmed the conviction, citing People v. Nelson.

An officer allegedly observed defendant Robinson patting down two pockets of a sleeping subway passenger, placing his hands inside the man's pants pocket and attempting to remove money. Criminal Court dismissed the misdemeanor complaint on the ground that the People were required to submit a corroborating affidavit by the victim. The Appellate Term reversed, reinstated the accusatory instrument and remanded the matter for further proceedings.

On appeal, defendants argue primarily that the jostling statute (Penal Law § 165.25) is void for vagueness. In People v. Tyler and People v. Robinson this issue is not preserved and, thus, our review of the issue is limited to People v. Nelson et al.

A vagueness challenge involves a two-part analysis. First, it must be determined whether the statute in question is "sufficiently definite 'to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute' " (People v. Smith, 44 N.Y.2d 613, 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032, quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989). Citizens must be afforded fair warning of what is prohibited by law so that they may act accordingly (Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222). Second, a statute " 'must provide explicit standards for those who apply them' so as to avoid 'resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application' " (People v. Smith, supra, 44 N.Y.2d at 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032, quotingGrayned v. City of Rockford, supra, 408 U.S. 108-109, 92 S.Ct. at 2298-2299). The Constitution abhors a law placing unfettered discretion in the hands of police, prosecutors and juries and allowing punishment of the poor or unpopular on a whim (Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 1858-1859, 75 L.Ed.2d 903; Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110). Defendants allege that Penal Law § 165.25 runs afoul of both of these concerns. We disagree.

Unlike statutes which have been declared void for vagueness because they provide insufficient warning to the person of ordinary intelligence (see, e.g., Papachristou v. City of Jacksonville, supra ), Penal Law § 165.25 clearly delineates specific conduct easily avoided by the innocent-minded. It should present no difficulty for a citizen to comprehend that he must refrain from acting with the intent to bring his hand into the proximity of a stranger's pocket or handbag unnecessarily. Moreover, contrary to defendants' claim, the statute is no more difficult to interpret and obey because it does not require larcenous intent. Penal Law § 165.25 prohibits a certain intention course of conduct regardless of the wrongdoer's underlying purpose or motive.

Defendants concern themselves with possible applications of the word "unnecessarily" which would be outside the statute's intended realm, such as tugging on another's handbag to gain that person's attention. It has often been said, however, that, except in rare circumstances not relevant here, a vagueness challenge must be addressed to the facts before the court (United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706; United States v. Raines, 362 U.S. 17, 20-22, 80 S.Ct. 519, 522-523, 4 L.Ed.2d 524; see, Broadrick v....