People v. Smith

• Decision Date: 17 February 1977
• Citation: 393 N.Y.S.2d 239,89 Misc.2d 754
• Court: New York Supreme Court — Appellate Term
• Parties: PEOPLE of the State of New York, Appellant, v. Toni SMITH, Defendant-Respondent.

Page 239

393 N.Y.S.2d 239

89 Misc.2d 754

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

Supreme Court, Appellate Term, First Department.

Feb. 17, 1977.

Robert M. Morgenthau, Dist. Atty. (Peter L. Zimroth and David Rapaport, New York City, of counsel), for appellant.

Goltzer & Adler, New York City (George R. Goltzer, New York City, of counsel), and William J. Gallagher and Robert H. Levy, New York City, for respondent.

Jeremiah S. Gutman and Levy, Gutman, Goldberg & Kaplan, New York City, for New York Civil Liberties Union, amicus curiae.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz and Lillian Z. Cohen, New York City, of counsel), intervenor.

Before DUDLEY, P.J., and RICCOBONO and GELLINOFF, JJ.

PER CURIAM:

This is an appeal from an order dated October 15, 1976 (Altman, J.), dismissing an accusatory instrument charging the defendant with loitering for the purpose of engaging in a prostitution offense, in violation of Penal Law Section 240.37. The court below concluded that Section 240.37 is 'vague, overbroad and inhibits free speech' (N.Y. City Cr.Ct., 88 Misc.2d 590, 601, 388 N.Y.S.2d 221, 228). We disagree.

In relevant part, Section 240.37 provides that '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.'

In enacting Section 240.37, the State Legislatu was motivated by its finding that persons loitering for the purpose of prostitution, or of patronizing or promoting prostitution, disrupt the public peace in that they '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 found 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, § 1.)

At a preliminary hearing following defendant's arrest, the court (O'Hare, J.) determined that there was reasonable cause to believe that she had violated Section 240.37. The evidence at the hearing disclosed that the arresting officer observed defendant for a period of some twenty-five minutes at about 2:00 a.m. on July 12, 1976. During that time, defendant, who, the officer knew, had previously been arrested for prostitution, was standing near several other known prostitutes, some of whom the officer had himself previously arrested for that offense, in front of a hotel which the officer knew catered to prostitutes and their clients. The officer saw defendant on three separate occasions accost men walking along the street as part of a constant flow of pedestrian traffic. She walked up to the first man, said something to him, and touched his arm. He continued walking, and defendant returned to the building line of the hotel. She similarly approached a second man, who shook his head and continued walking. She again returned to the building line. She then approached a third man, who entered the hotel with her. When they emerged, some five minutes later, the officer had a conversation with the man, and then arrested defendant.

After defendant was bound over for trial, but before trial could be had, the court below granted her motion to dismiss the accusatory instrument.

Although characterizing Section 240.37 as 'vague', the court below, in its extensive opinion, did not conclude that the terms of the statute were so unintelligible or ambiguous as not to give 'a person of ordinary intelligence fair notice that his contemplated conduct is forbidden' (see, United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989). And, on this appeal, defendant specifically eschews such a claim of vagueness. However, Amicus, in its brief, attempts to parse the language of the statute, and urges that its language is ambiguous. We conclude, however, that the language used in the statute is sufficiently plain as to enable persons of ordinary intelligence to understand precisely what acts are proscribed.

The primary issue on this appeal is presented by defendant's claim, with which the court below agreed, that the statute impermissibly 'places virtually unfettered discretion in the hands of the police and thereby encourages arbitrary and discriminatory enforcement' (see, People v. Berck, 32 N.Y.2d 567, 571, 347 N.Y.S.2d 33, 37, 300 N.E.2d 411, 413). But, contrary to defendant's argument, and unlike the cases upon which she relies, Section 240.37 does not make defendant's guilt or innocence of the offense depend on the subjective conclusions of the arresting officer.

People v. Williams, 55 Misc.2d 774, 286 N.Y.S.2d 575 and People v. Berck (supra), upon which defendant places principal reliance, concerned a statute (Penal Law, Section 240.35(6)) which declared a person guilty of loitering when he:

'Loiters, remains or wanders in or about a place without apparent reason and under circumstances which justify suspicion that he may be engaged or about to engage in crime, and, upon inquiry by a peace officer, refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes.'

In Williams, Section 240.35(6) was utilized in a street-sweeping campaign against suspected prostitutes. The Criminal Court (Basel, J.), although questioning the constitutionality of the statute, since 'it is the judgment of the officer and not the activity of the defendant which constitutes the crime' (55 Misc.2d at p. 777, 286 N.Y.S.2d at p. 579), nevertheless dismissed the complaints on the narrow ground of statutory construction (cf., People v. Schanbarger, 24 N.Y.2d 288, 300 N.Y.S.2d 100, 248 N.E.2d 16).

In Berck, a closely divided Court of Appeals struck down the same statute as unconstitutional, holding that

'the provision in question, containing as it does absolutely no guidelines governing the determination as to whether a person is engaged in suspicious loitering, leaves such determination solely up to the discretion of the police officer. Similarly, enforcement of the law depends entirely upon whether the arresting officer is satisfied that a suspect has given--as required by the statute to avoid arrest--a 'reasonably credible account of his conduct and purposes'. As has been said with respect to such 'satisfactory account' requirements in vagrancy statutes, 'It takes little imagination to perceive that the 'reasonable account' (or 'good account' or 'satisfactory account') requirement of the ordinary vagrancy law operates simply as a charter of dictatorial power to the policeman.' * * * Thus, whether or not a suspect is hauled off to jail for suspicious loitering depends, for all intents and purposes, upon the whim of the policeman. * * * In short, the absence of any ascertainable standards governing arrest and conviction under the statute renders fair, even-handed administration of the law is virtual impossibility' (32 N.Y.2d at pp. 571--2, 347 N.Y.S.2d at p. 37, 300 N.E.2d at p. 413).

The vice of Section 240.35(6), then, was in defining guilt of the offense in terms of circumstances justifying 'suspicion' in the arresting officer's mind. Unlike that statute, however, the statute now before us does not define guilt of the offense in terms of what is in a police officer's mind. To the contrary, it defines the crime in terms of the acts committed by the defendant, and her purpose in committing those acts, as determined by a trier of fact. And it is just this additional element--that the loitering involves objectively determined and specified acts, or that the loitering is for an objectively determined and specified purpose--that distinguishes the loitering provisions which the courts have upheld (see, People v. Johnson, 6 N.Y.2d 549, 190 N.Y.S.2d 694, 161 N.E.2d 9 (loiters 'in or about any school building or grounds'); People v. Merolla, 9 N.Y.2d 62, 211 N.Y.S.2d 155, 172 N.E.2d 541 (loiters 'upon a waterfront facility' without 'a satisfactory explanation'); People v. Bell, 306 N.Y. 110, 115 N.E.2d 821 (loiters in a 'subway' and 'is unable to give satisfactory explanation of his presence'); People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202 (loiters in a building 'for the purpose of unlawfully using' drugs); People v. Willmott, 67 Misc.2d 709, 324 N.Y.S.2d 616 (loiters 'for the purpose of soliciting another person to engage in deviate sexual intercourse')), from those loitering provisions, without any specified conduct or purpose which the courts have struck down (People v. Berck, supra; People v. Diaz, 4 N.Y.2d 469, 176 N.Y.S.2d 313, 151...