People v. Pace

• Decision Date: 13 November 1981
• Citation: 111 Misc.2d 488,444 N.Y.S.2d 529
• Parties: The PEOPLE of the State of New York, v. Sylvester PACE and Gaetano Pace, Defendants.
• Court: New York Supreme Court

Page 529

444 N.Y.S.2d 529

111 Misc.2d 488

The PEOPLE of the State of New York, v. Sylvester PACE and Gaetano Pace, Defendants.

Supreme Court, Criminal Term,

Kings County, Part 16.

Nov. 13, 1981.

Eugene Gold, Dist. Atty. (Susan Berger, Asst. Dist. Atty., of counsel), for plaintiff.

Jacob R. Evseroff, Brooklyn, for defendant Sylvester Pace.

Leon R. Port, Brooklyn, for defendant Gaetano Pace.

ELLIOTT GOLDEN, Judge.

Defendants, co-owners of an automobile wrecking and salvage company, are both charged with three counts of Criminal Possession of Stolen Property in the First Degree and nineteen counts of Criminal Possession of Stolen Property in the Second Degree relating to certain automobile components and parts recovered from their business premises.

Defendants move for an order seeking reargument of this court's decision dated May 20, 1981, heretofore denying a motion seeking an order to suppress physical evidence and to controvert a search warrant. On the instant motion, this court is presented with the determination of the constitutionality of Section 436 of the New York City Charter.

Section 436 of the New York City Charter entitled: Powers over certain trades, provides:

"The commissioner shall possess powers of general supervision and inspection over all licensed or unlicensed pawnbrokers, vendors, junkshop keepers, junk boatmen, cartmen, dealers in second-hand merchandise and auctioneers within the city; and in connection with the performance of any police duties he shall have power to examine such persons, their clerks and employees and their books, business premises, and any articles of merchandise in their possession. A refusal or neglect to comply in any respect with the provisions of this section on the part of any pawnbroker, vendor, junkshop keeper, junk boatman, cartman, dealer in second-hand merchandise or auctioneer, or any clerk or employee of any thereof shall be triable by a judge of the criminal court and punishable by not more than thirty days' imprisonment, or by a fine of not more than fifty dollars, or both."

Defendants ask this court to declare Section 436 of the New York City Charter unconstitutional on the asserted ground that it is void for vagueness vesting unfettered discretion in the Police Commissioner the power to search and supervise junk yards. Defendants further contend that their business is not one of those pervasively regulated ones permitting warrantless searches and that the statute is too inclusive of too many known non-closely regulated industries.

This court begins by noting that a strong presumption of constitutionality attaches to all legislation, local or otherwise, and this is coupled with the further presumption that the legislature has investigated and found the facts necessary to support the legislation. One attacking the constitutionality of legislative enactment must demonstrate their invalidity beyond a reasonable doubt. People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202. "It is a well-established rule that a court of original jurisdiction should never declare a law unconstitutional unless such conclusion is inescapable." (People v. Elkin, 196 Misc. 188, 193, 80 N.Y.S.2d 525; Bohling v. Corsi, 204 Misc. 778, 127 N.Y.S.2d 591, aff'd 306 N.Y. 815, 118 N.E.2d 823), and the tendency is to leave such questions to appellate tribunals (In re City of New Rochelle v. Ecko Bay Waterfront Corp., 182 Misc. 176, 46 N.Y.S.2d 645, aff'd 268 App.Div. 182, 49 N.Y.S.2d 673 aff'd 294 N.Y. 678, 60 N.E.2d 838). "Particularly, courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases where life and liberty is involved and invalidity of the act is apparent on its face." (National Psychological Association v. University of the State of New York, 18 Misc.2d 722, 725-26, 188 N.Y.S.2d 151, aff'd 10 A.D.2d 688, 199 N.Y.S.2d 423, aff'd 8 N.Y.2d 197, 203 N.Y.S.2d 821, 168 N.E.2d 649 app. dism. 365 U.S. 298, 81 S.Ct. 691, 5 L.Ed.2d 688).

In considering the attack leveled against Section 436 permitting an inspection of junk yards by the Commissioner of Police, this court starts with the undeniable fact that the only limitation imposed by the Constitution upon such inspections is that they be reasonable, the touchstone of the Fourth Amendment being a proscription against unreasonable searches and seizures.

Defendants argue that the instant statute is simply a device to circumvent the constitutional requirement of heretofore stated reasonable searches and seizures.

The police power is very broad and comprehensive and in its exercise the conduct of an individual and the use of property may be regulated so as to interfere to some extent with the freedom of the one and the enjoyment of the other. However, for the exercise of such police power to be valid, there must be a reasonable connection...