People v. Smith

• Decision Date: 15 June 1978
• Citation: 407 N.Y.S.2d 462,44 N.Y.2d 613,378 N.E.2d 1032
• Parties: , 378 N.E.2d 1032 The PEOPLE of the State of New York, Respondent, v. Toni SMITH, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 462

407 N.Y.S.2d 462

44 N.Y.2d 613, 378 N.E.2d 1032

The PEOPLE of the State of New York, Respondent, v. Toni SMITH, Appellant.

Court of Appeals of New York.

June 15, 1978.

[378 N.E.2d 1033] George Goltzer, Martin Erdmann, Judith Levin, and Alan L. Peck, New York City, for appellant

Robert M. Morgenthau, Dist. Atty. (Brian Rosner and Peter L. Zimroth, New York City, of counsel), for respondent.

[44 N.Y.2d 616] Louis J. Lefkowitz, Atty. Gen. (Lillian Z. Cohen and Samuel A. Hirshowitz, New York City, of counsel), in his statutory capacity under section 71 of the Executive Law and CPLR 1012-b.

OPINION OF THE COURT

COOKE, Judge.

We weigh here defendant's constitutional challenge to section 240.37 of the Penal Law (loitering for the purpose of engaging in a prostitution offense), on the asserted ground that the statute vests unfettered discretion in the police in the arrest of violators and, therefore, is void for vagueness. Additionally, it is urged that the statute is overbroad in that it inhibits the free exercise of protected rights. We reject the attack and uphold the legislation.

An ancillary but preliminary question concerns the hearing of this appeal in view of defendant's unavailability. This criminal proceeding was commenced by the filing of an accusatory instrument on July 12, 1976 alleging that Toni Smith on that day engaged in conduct violative of section 240.37. Thereafter, the New York City Criminal Court (B. Altman, J.) dismissed the complaint and declared the statute unconstitutional (88 Misc.2d 590, 388 N.Y.S.2d 221). In turn, the Appellate Term, First Department, reversed the Criminal Court order and denied the motion to dismiss (89 Misc.2d 754, 393 N.Y.S.2d 239). The case was reinstated in Criminal Court. Since defendant had failed to appear therein, a warrant was issued for her arrest. Although Ms. Smith is not available to obey the mandate of this court, her attorneys urge that the appeal be heard and the People join in requesting retention.

Normally and quite naturally, this court will not entertain the appeal of an absconding defendant-appellant (People v. Parmaklidis, 38 N.Y.2d 1005, 384 N.Y.S.2d 442, 348 N.E.2d 918; People v. Del Rio, 14 N.Y.2d 165, 169, 250 N.Y.S.2d 257, 260, 199 N.E.2d 359, 361; People v. Genet, 59 N.Y. 80, 82), but here a number of jurisprudential considerations militate otherwise. All sides earnestly seek a court review and determination; there are two pending civil actions in the United States District Court involving the constitutionality of the instant statute, in one of which a stay has been issued pending the disposition of this appeal (see Maggu v. Carey, 76 Civ. 3016 (SDNY); Carmen v. Carey, 78 Civ. 438 (SDNY)); defendant's attack is upon the accusatory instrument, she has not been tried or convicted and in these circumstances a duly authorized attorney may appear for the appellant in absentia (cf. United States v. Weinstein, 2 Cir., 511 F.2d 622, 628-629); and, most importantly, the statute is still being enforced, with numerous arrests presumably occurring daily. The situation here is analogous to those of mootness or standing, where appeals are determined because the issue presented is imbued with substantial public interest, is surrounded with some uncertainty and is likely to surface again (see, e. g., People v. Parker, 41 N.Y.2d 21, 25, 390 N.Y.S.2d 837, 840, 359 N.E.2d 348, 350; Matter of Carr v. New York State Bd. of Elections, 40 N.Y.2d 556, 559, 388 N.Y.S.2d 87, 89, 356 N.E.2d 713, 715; People ex rel. Donohoe v. Montanye, 35 N.Y.2d 221, 224-225, 360 N.Y.S.2d 619, 620-621, 318 N.E.2d 781, 782-783; Matter of Concord Realty Co. v. City of New York, 30 N.Y.2d 308, 312-313, 333 N.Y.S.2d 161, 162-164, 284 N.E.2d 148, 149-150).

The class B misdemeanor of prostitution is proscribed under section 230.00 of the Penal Law which provides: "A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee." Because prostitution normally involves two willing participants and complaints by those implicated are rare indeed, section 230.00 is insufficient to meet public needs in light of the profligate spread of the world's oldest profession and its attendant evils in our central cities. Accordingly, the Legislature added section 240.37 to the Penal Law in 1976 under findings which recited:

"The legislature hereby finds and declares that loitering for the purpose of prostitution, patronizing or promoting prostitution is disruptive of the public peace in that certain persons engaged in such conduct in public places harass and interfere with the use and enjoyment by other persons of such public places thereby constituting a danger to the public health and safety.

"The legislature further finds that in recent years the incidence of such conduct in public places has increased significantly in that persons aggressively engaging in promoting, patronizing or soliciting for the purposes of prostitution have, by their course of conduct in public places, caused citizens who venture into such public places to be the unwilling victims of repeated harassment, interference and assault upon their individual privacy, as a result of which such public places have become unsafe and the ordinary community and commercial life of certain neighborhoods has been disrupted and has deteriorated" (L. 1976, ch. 344).

The relevant language of section 240.37 follows: "Any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution, or of patronizing a prostitute as those terms are defined in article two hundred thirty of the penal law, shall be guilty of a violation and is guilty of a class B misdemeanor if such person has previously been convicted of a violation of this section or of sections 230.00 or 230.05 of the penal law."

An analysis of the merits of this appeal commences with a recognition of the fundamental two-part test which the due process clause imposes on a criminal statute claimed to be vague. First, it must be sufficiently definite "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" (United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989). Second, it "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" (Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222). Illustrative of the application of the second phase of this inquiry, in striking down a Jacksonville vagrancy ordinance ¹ as unconstitutional, the Supreme Court poignantly observed: "Those generally implicated by the imprecise terms of the ordinance poor people, nonconformists, dissenters, idlers may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.' Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 84 L.Ed. 1093. It results in a regime in which the poor and the unpopular are permitted to 'stand on a public sidewalk . . . only at the whim of any police officer.' Shuttlesworth v. Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176." (Papachristou v. City of Jacksonville, 405 U.S. 156, 170, 92 S.Ct. 839, 847, 31 L.Ed.2d 110 (1972).)

Defendant does not declare that the statute fails to furnish adequate notice of the conduct declared to be criminal. ² Rather, the thrust of her attack lies in her assertion that the "constitutional infirmity * * * lies in the fact that it encourages police to use unfettered discretion in making arrests solely on circumstantial evidence" requiring them to "infer criminality from wholly innocent or ambiguous activity in which free citizens must necessarily engage to lead normal lives." Thus, the argument continues, since a police officer must speculate as to the purpose of constitutionally protected activity, the statute " 'impermissibly delegates basic policy matters to policemen' ", forbidden under Grayned.

The strength of defendant's assault on section 240.37 is diminished greatly by the presence therein of an element lacking in those enactments struck down and declared void for vagueness (see, e. g., People v. Berck, 32 N.Y.2d 567, 569, 347 N.Y.S.2d 33, 36, 300 N.E.2d 411, 413, cert. den. 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (criminating loitering " 'in or about a place without apparent reason' * * * under circumstances which 'justify suspicion' that a person 'may be engaged or about to engage in crime' "); People v. Diaz, 4 N.Y.2d 469, 470, 176 N.Y.S.2d 313, 314, 151 N.E.2d 871, (" 'No person shall * * * loiter about any street or street corner in the City of Dunkirk' ")). That distinctive characteristic is the delineation of specific conduct, in addition to the loitering, which the arresting officer must observe. Thus, the statute explicitly limits its reach to loitering of a demonstrably harmful sort, i. e., loitering for the purpose of committing a specific offense. The value of these additives is apparent from those decisions of this court which repeatedly have declared valid legislation prohibiting loitering in a specific place or for a specific purpose (see, e. g., People v. Pagnotta, 25 N.Y.2d...