People v. Onofre

• Decision Date: 24 January 1980
• Parties: PEOPLE of the State of New York, Respondent, v. Ronald ONOFRE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 566

424 N.Y.S.2d 566

72 A.D.2d 268

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

Supreme Court, Appellate Division, Fourth Department.

Jan. 24, 1980.

Bonnie Strunk, Syracuse (Margot Karle, New York City, of counsel), for appellant.

William H. Gardner, National Committee for Sexual Civil Liberties, Buffalo, amicus curiae.

Richard A. Hennessy, Jr., Dist. Atty., Syracuse, for respondent (Gail N. Uebelhoer, Asst. Dist. Atty., Syracuse, of counsel).

Before DILLON, P. J., and CARDAMONE, SIMONS, DOERR and WITMER, JJ.

DOERR, Justice.

Defendant was charged with the crime of consensual sodomy in violation of section 130.38 of the Penal Law. ¹ He moved to dismiss the charge against him, alleging that the statute is unconstitutional on its face. After a careful review of the law on the subject, County Court denied the motion and defendant entered a plea of guilty to consensual sodomy in violation of section 130.38 of the Penal Law. It is from this conviction that defendant appeals, again challenging the constitutionality of the statute. In this posture the case is properly before this court for review (see People v. Rice, 41 N.Y.2d 1018, 395 N.Y.S.2d 626, 363 N.E.2d 1371). We reverse.

There is no fact in dispute. Defendant by his own affidavit and his testimony before the grand jury, after waiving immunity, admitted engaging in the proscribed sexual conduct over a period of time with another male in the privacy of his home. The relationship, admitted by both participants, was entered into by mutual consent.

Section 130.38 of the Penal Law provides that "A person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person." Deviate sexual intercourse is defined as " * * * 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" (Penal Law, § 130.00, subd. 2). Thus, while the statute prohibits homosexual conduct, it also proscribes certain heterosexual conduct, but the latter is proscribed only between persons not married to each other. To that extent it is not the conduct which is condemned but rather the lack of jural relationship which the parties bear to each other.

The defendant argues that such a penal prohibition is an improper exercise of governmental power, violative of his fundamental right to privacy, and that the due process clause requires strict judicial scrutiny of the governmental interest in such a statute. He further asserts that the distinction made in the statute between married and unmarried individuals is impermissible under the equal protection clause.

The People urge that we are bound by Doe v. Commonwealth's Attorney for City of Richmond, D.C., 403 F.Supp. 1199, affd. without opn. 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751, which upheld the constitutionality of a Virginia penal law prohibiting consensual sodomy. That case, however, involved an action for a declaratory judgment and a permanent injunction from prosecution under the Virginia statute on the basis of possible police interference or enforcement. In the case at bar we have a defendant attacking the constitutionality of a penal statute under which he stands convicted of a crime. Furthermore, in the light of Cooper v. Morin, --- N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ----, decided December 19, 1979, Doe v. Commonwealth's Attorney (supra) is not binding upon our court in any event. We therefore address the subject.

Prior to 1965, privacy was not regarded as an independent constitutional right but was rather an interest given limited protection by certain constitutional provisions, e. g., the Fourth and Fifth Amendments. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, the Supreme Court, based upon a "zone of privacy" relationship, struck down a statute forbidding the use of contraceptives by a married couple. The right of privacy was again recognized and extended in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, the court holding that if the distribution of contraceptives to married persons cannot be prohibited, a ban on their distribution to unmarried persons is equally impermissible. In doing so, it stated that, "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, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). See also Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 49 L.Ed. 643 (1905)." (Eisenstadt v. Baird, supra, pp. 453-454, 92 S.Ct. p. 1038 (emphasis added).) Subsequently this right of privacy was held to be a liberty guaranteed by due process of law in upholding the right of an unmarried woman to terminate her pregnancy (Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147).

Thus it is seen that the concept of personal freedom includes a broad and unclassified group of values and activities related generally to individual repose, sanctuary and autonomy and the individual's right to develop his personal existence in the manner he or she sees fit. Personal sexual conduct is a fundamental right, protected by the right to privacy because of the transcendental importance of sex to the human condition, the intimacy of the conduct, and its relationship to a person's right to control his or her own body (see generally Wilkinson & White, Constitutional Protection for Personal Lifestyles, 62 Cornell L.Rev. 563). The right is broad enough to include sexual acts between non-married persons (see Roe v. Wade, supra; Eisenstadt v. Baird, supra) and intimate consensual homosexual conduct (see Tribe, American Constitutional Law, p. 946).

It has been said that "privacy in the conventional sense (being left alone without anyone observing) is a generally accepted prerequisite to human sexual intercourse and the protection of sexual activity seems to be an important aspect of the constitutional right to privacy cases" (Richards, Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory, 45 Fordham L.Rev. 1281, 1303). The right to be free from unwarranted governmental intrusions into one's privacy is fundamental (Stanley v....