People v. O'Sullivan

• Decision Date: 16 June 1978
• Citation: 96 Misc.2d 52,409 N.Y.S.2d 332
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph P. O'SULLIVAN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 332

409 N.Y.S.2d 332

96 Misc.2d 52

The PEOPLE of the State of New York, Respondent, v. Joseph P. O'SULLIVAN, Defendant-Appellant.

Supreme Court, Appellate Term, First Department.

June 16, 1978.

Mark Lemle Amsterdam, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Robert M. Pitler and Jerrold Tannenbaum, New York City, of counsel), for respondent.

Before DUDLEY, P. J., and HUGHES and TIERNEY, JJ.

PER CURIAM:

Judgment of conviction rendered June 20, 1977 (Eiber, J.) affirmed.

Defendant, a devotee and practitioner of the art of tattooing, was served with a summons for tattooing an unidentified female on a public street, in violation of New York City Health Code, section 181.15. That section prohibits all tattooing of human beings, except by licensed medical doctors for medical purposes. It was enacted after a trial period during which regulation of the practice proved ineffective as a means of coping with hepatitis, an ailment which has frequently resulted from tattooing.

Although section 181.15 of the New York City Health Code has heretofore been held constitutional (Grossman v. Baumgartner, 17 N.Y.2d 345, 271 N.Y.S.2d 195, 218 N.E.2d 259), defendant contends that Grossman v. Baumgartner, Supra, failed to deal with First Amendment rights. Whether tattooing be an art form, as suggested by the defendant, or a "barbaric survival, often associated with a morbid or abnormal personality," as suggested by four justices of the Appellate Division (Grossman v. Baumgartner, 22 A.D.2d 100, 102, 254 N.Y.S.2d 335, 338), we do not deem it speech or even symbolic speech. However, even pure speech may be subject to reasonable regulation in the public interest (Cox v. Louisiana, 379 U.S. 536, 545, 85 S.Ct. 453, 13 L.Ed.2d 471; Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 17 L.Ed.2d 149; People v. Radich, 26 N.Y.2d 114, 118-9, 308 N.Y.S.2d 846, 848-49, 257 N.E.2d 30, 31-32; People v. Street, 20 N.Y.2d 231, 235, 282 N.Y.S.2d 491, 494, 229 N.E.2d 187, 189), and defendant's right to engage in tattooing is not paramount to the public's right to good health. Nor may defendant escape valid regulation by labelling his art form symbolic speech (United States v. O'Brien, 391 U.S. 367, 376-7, 88 S.Ct. 1673, 20 L.Ed.2d 672). When the object of legislation is not the suppression of free expression but the promotion of public health, there is no constitutional violation even if there is some incidental interference with liberty or property (...