People v. Santorelli

• Decision Date: 07 July 1992
• Court: New York Court of Appeals Court of Appeals
• Parties: , 600 N.E.2d 232 The PEOPLE of the State of New York, Respondent, v. Ramona SANTORELLI and Mary Lou Schloss, Appellants, et al., Defendants.

Page 601

587 N.Y.S.2d 601

80 N.Y.2d 875, 600 N.E.2d 232

The PEOPLE of the State of New York, Respondent, v. Ramona SANTORELLI and Mary Lou Schloss, Appellants, et al.,

Defendants.

Court of Appeals of New York.

July 7, 1992.

[600 N.E.2d 233] Herald Price Fahringer and Diarmuid White, New York City, for Ramona Santorelli, appellant.

[80 N.Y.2d 876] Donald W. O'Brien, Jr., Rochester, for Mary Lou Schloss, appellant.

Howard R. Relin, Dist. Atty. (Elizabeth Clifford, Rochester, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of Monroe County Court, 149 Misc.2d 223, 564 N.Y.S.2d 695, should be reversed and the informations dismissed.

Defendants' claim that Penal Law § 245.01 offends the Equal Protection Clauses of the Federal and State Constitutions was expressly passed upon by County Court, and its disposition of that claim was a necessary basis for its order of reversal of the Rochester City Court which had dismissed the informations (see, People v. Craft, 149 Misc.2d 223, 564 N.Y.S.2d 695 [Monroe County Ct]; People v. Craft, 134 Misc.2d 121, 509 N.Y.S.2d 1005 [Rochester City Ct]. We, therefore, reject the People's argument that under CPL 470.35(2)(a) the Court of Appeals lacks jurisdiction to pass upon that claim.

Defendants were arrested for violating Penal Law § 245.01 (exposure of a person) when they bared "that portion of the breast which is below the top of the areola" in a Rochester public park. The statute, they urge, is discriminatory on its face since it defines "private or intimate parts" of a woman's but not a man's body as including a specific part of the breast. That assertion being made, it is settled that the People then have the burden of proving that there is an important government interest at stake and that the gender classification is substantially related to that interest (see, Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090). In this case, however, the People have made no attempt below and make none before us to demonstrate that the statute's discriminatory effect serves an important governmental interest or that the classification is based on a reasoned predicate. Moreover, the People do not dispute that New York is one of only two States which criminalizes the mere exposure by a woman in a public place of a specific part of her breast.

Despite the People's virtual default on the constitutional issue, we must construe a statute, which enjoys a presumption of constitutionality, to uphold its constitutionality if a rational basis can be found to do so (see, McKinney's Cons.Laws of N.Y., Book 1, Statutes § 150[c]; People v. Price, 33 N.Y.2d 831, 351 N.Y.S.2d 973, 307 N.E.2d 46 [defendant's equal protection claim not addressed because statute was construed to not apply]; Childs v. Childs, 69 A.D.2d 406, 418-421, 419 N.Y.S.2d 533).

Penal Law § 245.01, when originally enacted (L.1967, ch. 367, § 1), "was aimed at discouraging 'topless' waitresses and their promoters (see, Practice Commentary by Denzer and McQuillan, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 245.01, p. 200)" (People v. Price, 33 N.Y.2d 831, 832, 351 N.Y.S.2d 973, 307 N.E.2d 46, supra). Considering the statute's provenance, we held in Price that a woman walking along a street wearing a fishnet, see-through pull-over blouse did not transgress the statute and that it "should not be applied to the noncommercial, perhaps accidental, and certainly not lewd, exposure alleged" (id., at 832, 351 N.Y.S.2d 973, 307 N.E.2d 46). Though the statute and the rationale for that decision are different, we believe that the underlying principle of People v. Price (supra) should be followed. ^* We, therefore, conclude that Penal Law § 245.01 is not applicable to the conduct presented in these circumstances and that the City Court was correct in dismissing the informations.

TITONE, Judge (concurring).

Citing the maxim that wherever possible statutes should be construed so as to sustain their constitutionality (see, e.g., Matter of Sarah K., 66 N.Y.2d 223, 496 N.Y.S.2d 384, 487 N.E.2d 241, cert denied sub nom. Kosher v. Stamatis, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914; Loretto v. Teleprompter Manhattan CATV Corp., 58 N.Y.2d 143, 459 N.Y.S.2d 743, 446 N.E.2d 428), the Court bypasses appellants' equal protection argument by holding that Penal Law § 245.01 simply does not apply "in these circumstances." That maxim is unhelpful here, however, since both the language and the history of Penal Law § 245.01 demonstrate quite clearly that the conduct with which appellants were charged is precisely the type of behavior that the Legislature intended to outlaw when it enacted Penal Law § 245.01. Thus, appellants' constitutional equal protection claim cannot be avoided and the only relevant legal maxim is the one that demands proof by the State that a classification based on gender be substantially related to the achievement of an important governmental objective (e.g., Caban v. Mohammed, 441 U.S. 380, 388, 393, 99 S.Ct. 1760, 1765, 1768, 60 L.Ed.2d 297; People v. Liberta, 64 N.Y.2d 152, 168, 485 N.Y.S.2d 207, 474 N.E.2d 567). Since that standard has not been satisfied here, I would hold that, as applied in these circumstances, Penal Law § 245.01 is unconstitutional and, for that reason, the charges against appellants should have been dismissed.

Appellants and the five other women who were arrested with them were prosecuted for doing something that would have been permissible, or at least not punishable under the penal laws, if they had been men--they removed their tops in a public park, exposing their breasts in a manner that all agree was neither lewd nor intended to annoy or harass. As a result of this conduct, which was apparently part of an effort to dramatize their opposition to the law, appellants were prosecuted under Penal Law § 245.01, which provides that a person is guilty of the petty offense of "exposure" when he or she "appears in a public place in such a manner that the private or intimate parts of his [or her] body are unclothed or exposed." The statute goes on to state that, for purposes of this prohibition, "the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola." ¹ The statute thus creates a clear gender-based classification, triggering scrutiny under equal protection principles (see, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397).

The majority has attempted to short-circuit this equal protection inquiry by holding that Penal Law § 245.01 is inapplicable to these facts. However, apart from a cryptic reference to People v. Price, 33 N.Y.2d 831, 351 N.Y.S.2d 973, 307 N.E.2d 46, which the majority admits involved a different statute and rationale, no explanation is offered as to why this facially applicable statute should not be applied here or what specific factor differentiates these circumstances from those in which the statute was intended to apply.

Price is inapt in this context because it involved the predecessor to the current Penal Law § 245.01 (L.1967, ch. 367, § 1, amended by L.1970, ch. 40, § 1, repealed by L.1983, ch. 216, § 1), which was entitled "exposure of a female" and, as the majority acknowledges, "was aimed at discouraging 'topless' waitresses and their promoters" (People v. Price, supra, at 832, 351 N.Y.S.2d 973, 307 N.E.2d 46; see, Donnino, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 245.01, at 299-300). Given that purpose, it made sense for the Court to hold in Price that the statute "should not be applied to the noncommercial, perhaps accidental, and certainly not lewd, exposure alleged" in that case (33 N.Y.2d, at 832, 351 N.Y.S.2d 973, 307 N.E.2d 46). ²

In contrast, the current version of Penal Law § 245.01, which was adopted in 1983 to replace the statute at issue in Price (L.1983, ch. 216, § 1), was specifically intended to expand the reach of the "public exposure" prohibition. The new provision was aimed at filling a gap resulting from the fact that the existing law prohibited women from appearing topless in public but contained no prohibition against either men or women appearing bottomless in public places (Governor's Approval Mem, L.1983, ch. 216, 1983 McKinney's Session Laws of NY, at 2756). The explicit purpose of the new law was to protect parents and children who use the public beaches and parks "from the discomfort caused by unwelcome public nudity" (id.; accord, Sponsors' Mem. re: Assembly Bill A5638, Bill Jacket, L.1983, ch. 216; Letter dated May 31, 1983 from Assembly Member G.E. Lipschutz to Governor Cuomo re: Assembly Bill A5638, id.). Simply put, the focus of the legislation was to proscribe nude sunbathing by ordinary citizens (see, People v. Hollman, 68 N.Y.2d 202, 507 N.Y.S.2d 977, 500 N.E.2d 297). It thus cannot seriously be argued that the present version of Penal Law § 245.01 was intended to be limited, as its predecessor may have been, to commercially motivated conduct.

Nor can it be argued that Penal Law § 245.01 was intended to be confined to conduct that is lewd or intentionally annoying. First, there is absolutely no support in the legislative history for such a construction. Second, a construction of Penal Law § 245.01 requiring lewdness would be of highly questionable validity, since it would render Penal Law § 245.00 (prohibiting the exposure of "intimate parts" "in a lewd manner") redundant (see, McKinney's Cons.Laws of N.Y., Book 1, Statutes § 98[a] ["(a)ll parts of a statute must be harmonized * * * and effect and meaning must * * * be given to the entire statute"]. Finally, whatever the Court may have said about the limitations of the predecessor provision (see, People v. Price, supra), this Court has already applied the current version of Penal Law § 245.01 to the public exposure of a person's "intimate parts," even where the conduct was merely an expression...