People v. Smith

• Decision Date: 16 October 1973
• Citation: 348 N.Y.S.2d 694,75 Misc.2d 554
• Parties: , 74 Lab.Cas. P 53,354 PEOPLE of the State of New York, v. Louise SMITH and Lawrence Smith, Defendants.
• Court: New York District Court

Page 694

348 N.Y.S.2d 694

75 Misc.2d 554, 74 Lab.Cas. P 53,354

PEOPLE of the State of New York, v. Louise SMITH and Lawrence Smith, Defendants.

District Court, Suffolk County, First District.

Oct. 16, 1973.

George Aspland, Dist. Atty., Riverhead, for the People.

McNamara & Oliver, Bay Shore, of counsel for defendants.

MEMORANDUM

ALEXANDER W. KRAMER, Judge.

The defendants sold a can of car wax and spark plug wires to General Business Law. They now move to dismiss the informations filed against them on the grounds that the defendants had a legal right to open for business on the date in question and that the Sabbath Law is confusing and therefore one need not obey it.

The defendant sold a can of car wax and spark plug wires to unknown males. The complainants are police officers who witnessed the transactions. A review of the applicable provisions of the General Business Law reveals that the items sold do not come under any of the exemptions contained in Section 9.

The Sabbath Laws, while faced with doubts as to their utility in modern society, are nevertheless constitutional (People v. L. A. Witherill, Inc., 29 N.Y.2d 446, 328 N.Y.S.2d 668, 278 N.E.2d 905). The defendants allege that they observe another day as their holy day; namely, Wednesday. While this may be so, it is nevertheless only a defense to the charges made against them (General Business Law § 10) and not a defect which necessitates a dismissal of the information. It is a question which must be decided at the trial of this action. The case of People v. Law (16 Misc.2d 696, 142 N.Y.S.2d 440), cited by the defendants, offers no help to the court with the instant motion since that case rested on establishing that the sale in question did not constitute a serious interruption of the repose and religious liberty of the community. However, People v. Cooks of N.Y. (65 Misc.2d 790, 318 N.Y.S.2d 960) states that the Legislature, by providing for Sunday closing for all but a specified list of exemptions, has in effect stated that Sunday openings Are a serious interruption of the repose and religious liberty of the community. The question, therefore, cannot be answered on a motion containing conflicting affidavits.

In a like manner, the court cannot, as the defendants request, take judicial notice of the neighborhood in which the defendants' business is located. Judicial notice is based on the premise that 'what the world generally knows a court of justice may be assumed to know' (People v....