People v. Onofre

• Decision Date: 18 December 1980
• Citation: 415 N.E.2d 936,434 N.Y.S.2d 947,51 N.Y.2d 476
• Parties: , 415 N.E.2d 936, 20 A.L.R.4th 987 The PEOPLE of the State of New York, Appellant, v. Ronald ONOFRE, Respondent. The PEOPLE of the State of New York, Respondent, v. Conde J. PEOPLES, III, and Philip S. Goss, Appellants. The PEOPLE of the State of New York, Respondent, v. Mary SWEAT, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 947

434 N.Y.S.2d 947

51 N.Y.2d 476, 415 N.E.2d 936, 20

A.L.R.4th 987

The PEOPLE of the State of New York, Appellant, v. Ronald ONOFRE, Respondent.

The PEOPLE of the State of New York, Respondent, v. Conde J. PEOPLES, III, and Philip S. Goss, Appellants.

The PEOPLE of the State of New York, Respondent, v. Mary SWEAT, Appellant.

Court of Appeals of New York.

Dec. 18, 1980.

Richard A. Hennessy, Jr., Dist. Atty. (Gail N. Uebelhoer and John A. Cirando, Asst. Dist. Attys., of counsel), for appellant in the first above entitled action

Bonnie Strunk, Syracuse, for respondent in the first above entitled action.

Bruce V. Bordelon, Shepherd I. Raimi and Jo-Ann H. Whitehorn, New York City, for Special Committee on Sex and Law of the Association of the Bar of the City of New York, amicus curiae in the first above entitled action.

Barbara Ellen Handschu, Buffalo, for National Committee for Sexual Civil Liberties, amicus curiae in the first above entitled action.

Thomas B. Stoddard, New York City, for New York Civil Liberties Union, amicus curiae in the first above entitled action.

Margot Karle and Rosalyn H. Richter, New York City, for Lambda Legal Defense & Education Fund, Inc., amicus curiae in the first above-entitled action.

William H. Gardner and Dianne Bennett, Buffalo, for appellants in the second and third above-entitled actions.

Edward C. Cosgrove, Dist. Atty. (John J. DeFranks, Asst. Dist. Atty., of counsel), for respondent in the second and third above-entitled actions.

OPINION OF THE COURT

JONES, Judge.

These appeals, argued together, present a common question viz., whether the provision of our State's Penal Law that makes consensual sodomy a crime is violative of rights protected by the United States Constitution. We hold that it is.

Defendant Onofre was convicted in County Court of Onondaga County of violating section 130.38 of the Penal Law (consensual sodomy) after his admission to having committed acts of deviate sexual intercourse with a 17-year-old male at defendant's home. ¹ The factual admission followed the court's denial of defendant's motion to dismiss the indictment on the ground that the statute was an invasion of his constitutionality protected right of privacy and that it denied him equal protection of the laws.

Defendants Peoples and Goss were convicted in Buffalo City Court of violating the consensual sodomy statute after a jury trial at which evidence was adduced that they had engaged in an act of oral sodomy in an automobile parked on a street in the City of Buffalo in the early morning hours. Defendant Sweat was convicted of the same crime after a jury trial in the same court on proof that she had committed a similar act with a male in a truck parked on a street in a residential area of the city about 1:30 A.M. In the cases in Buffalo City Court motions by defendants for dismissals of the informations on the ground that section 130.38 of the Penal Law is unconstitutional because it deprives them of equal protection of the law and denies their right of privacy had been denied.

On appeal by defendants from the judgments of conviction the Appellate Division, Fourth Department, reversed in the case of Onofre and dismissed the indictment, concluding that section 130.38 of the Penal Law was unconstitutional and the County Court of Erie County affirmed the convictions of Peoples, Goss and Sweat, rejecting the claims of unconstitutionality. The order of the Appellate Division should be affirmed; those of County Court should be reversed and the informations dismissed.

The statutes under which these defendants were charged and convicted provide as follows:

" § 130.38 Consensual sodomy.

"A person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person.

" § 130.00 Sex offenses; definitions of terms.

"The following definitions are applicable to this article:

"2. Deviate sexual intercourse means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva."

Because the statutes are broad enough to reach noncommercial, cloistered personal sexual conduct of consenting adults and because it permits the same conduct between persons married to each other without sanction, we agree with defendants' contentions that it violates both their right of privacy ² and the right to equal protection of the laws guaranteed them by the United States Constitution.

As to the right of privacy. At the outset it should be noted that the right addressed in the present context is not, as a literal reading of the phrase might suggest, the right to maintain secrecy with respect to one's affairs or personal behavior; rather, it is a right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by governmental restraint what we referred to in People v. Rice, 41 N.Y.2d 1018, 1019, 395 N.Y.S.2d 626, 363 N.E.2d 1371 as "freedom of conduct". (See Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 875-876, 51 L.Ed.2d 64.) The right, which has been called "the most comprehensive of rights and the right most valued by civilized men" (Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (Brandeis, J., dissenting)), "has been viewed as emanating from the first amendment's guarantee of freedom of association, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); and of speech, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); the fourth amendment, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); the equal protection clause of the fourteenth amendment, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); the ninth amendment, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring); the penumbras of the Bill of Rights, id.; and the concept of liberty guaranteed by the due process clause of the fourteenth amendment, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)" (Lovisi v. Slayton, D.C., 363 F.Supp. 620, 624, affd., 4 Cir., 539 F.2d 349, cert. den. 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 585 supra).

As recently as 1976 the Supreme Court took pains in Carey v. Population Servs. Int., 431 U.S. 678, 684-685, 97 S.Ct. 2010, 2015-16, 52 L.Ed.2d 675 to observe that "the outer limits" of the decision-making aspect of the right of privacy "have not been marked by the Court", noting however that "among the decisions that an individual may make without unjustified government interference" are personal decisions relating to marriage (Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010, supra), procreation (Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655), contraception (Eisenstadt v. Baird, 405 U.S. 438, 453-454, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349), family relationships (Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645), child rearing and education (Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042), and abortion (Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 727, 35 L.Ed.2d 147, supra.

The People are in no disagreement that a fundamental right of personal decision exists; the divergence of the parties focuses on what subjects fall within its protection, the People contending that it extends to only two aspects of sexual behavior marital intimacy (by virtue of the Supreme Court's decision in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 supra) and procreative choice (by reason of Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed. 2d 349 supra and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, supra)). Such a stance fails however adequately to take into account the decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, supra and the explication of the right of privacy contained in the court's opinion in Eisenstadt. In Stanley the court found violative of the individual's right to be free from governmental interference in making important, protected decisions a statute which made criminal the possession of obscene matter within the privacy of the defendant's home. Although the material itself was entitled to no protection against government proscription (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498) the defendant's choice to seek sexual gratification by viewing it and the effectuation of that choice within the bastion of his home, removed from the public eye, was held to be blanketed by the constitutional right of privacy. That the right enunciated in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, supra to make decisions with respect to the consequence of sexual encounters and, necessarily, to have such encounters, was not limited to married couples was made clear by the language of the court in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, supra: "It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. See Stanley v. Georgia, 394 U.S. 557, 1243, 22 L.Ed.2d 542 (1969)." In a footnote appended to the Stanley citation the court set out the following quotation from that decision (405 U.S. p. 453, n. 10, 92 S.Ct. p. 1038 n. 10):

" '(A)lso fundamental is the right to...