People v. Uplinger

• Decision Date: 23 February 1983
• Citation: 58 N.Y.2d 936,447 N.E.2d 62,460 N.Y.S.2d 514
• Parties: , 447 N.E.2d 62 The PEOPLE of the State of New York, Respondent, v. Robert UPLINGER, Appellant. The PEOPLE of the State of New York, Respondent, v. Susan BUTLER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 514

460 N.Y.S.2d 514

58 N.Y.2d 936, 447 N.E.2d 62

The PEOPLE of the State of New York, Respondent, v. Robert UPLINGER, Appellant.

The PEOPLE of the State of New York, Respondent, v. Susan BUTLER, Appellant.

Court of Appeals of New York.

Feb. 23, 1983.

William H. Gardner, Buffalo, for Robert Uplinger, appellant.

Joseph A. Shifflett, Rose H. Sconiers and Joseph B. Mistrett, Buffalo, for Susan Butler, appellant.

Richard J. Arcara, Dist. Atty. (John J. De Franks and Louis A. Haremski, Buffalo, of counsel), for respondent.

Michael J. Lavery, New York City, for Lambda Legal Defense and Educ. Fund, amicus curiae.

Sarah Wunsch and Rhonda Copelon, New York City, for Center for Constitutional Rights, amicus curiae.

Steven R. Shapiro, New York City, for New York Civil Liberties Union, amicus curiae.

OPINION OF THE COURT MEMORANDUM.

The order of the County Court, 113 Misc.2d 876, 449 N.Y.S.2d 916, should be reversed and in each case the information should be dismissed.

The statute challenged on these appeals (Penal Law, § 240.35, subd. 3), which prohibits loitering "in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature" must be viewed as companion statute to the consensual sodomy statute (Penal Law, § 130.38) which criminalized acts of deviate sexual intercourse between consenting adults. We held in People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 that the State may not constitutionally prohibit sexual behavior conducted in private between consenting adults. The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute. Because the statute itself is devoid of a requirement that the conduct proscribed be in any way offensive or annoying to others, the challenged statute cannot be categorized as a harassment statute.

The dissent improperly reads into this holding a blanket proscription upon all statutes directed against conduct of this nature. We do not hold that the Legislature cannot enact a law prohibiting a person from accosting another in an offensive manner or in an inappropriate place even if the underlying purpose is not a violation of law. The Legislature could also prohibit solicitation for the purpose of performing the object conduct in a public place. On the contrary, statutes of this general nature when properly drafted have been upheld by the courts. However, it is apparent from the wording of this statute that it was aimed at proscribing overtures, not necessarily bothersome to the recipient, leading to what was, at the time the law was enacted, an illegal act.

The dissenter's perception of the basis for our conclusion of unconstitutionality is inaccurate and confuses the defendants' argument with our holding; we have neither discussed nor decided any overbreadth questions by implication or otherwise.

JASEN, Judge (dissenting).

The majority today invalidates a provision of the Penal Law ¹ designed to protect persons from being harassed on the public streets by others w seek only their own sexual gratification. Without addressing the arguments made by either the defendants or the People, they do so on the ground that this statute is nothing more than a companion statute to the consensual sodomy statute and since we have determined that the Legislature cannot proscribe sexual conduct between consenting adults in private, it cannot proscribe any conduct anticipatory to consensual sodomy. In my view, this court's decision in People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 in no way limited the Legislature's ability to regulate public conduct, albeit anticipatory to later private conduct. As it seems to me that the statute represents a valid legislative effort to protect the public against unwarranted harassment, I am compelled to dissent.

The history of this statute does not support the majority's contention that it "must be viewed as a companion statute to the consensual sodomy statute". Section 240.35 of the Penal Law, denominated "Loitering" and codified with other crimes concerning public order, was derived from former sections 722 and 1148 of the Penal Law. Those proscribed loitering "about any public place soliciting men for the purpose of committing a crime against nature ² or other lewdness" or soliciting for immoral purposes. ³ The former being more closely related to the statute now before us, it too was not codified under crimes of a sexual nature, but under that part of the Penal Law denominated "Disorderly conduct". Thus, there is no indication that the Legislature was in any way addressing itself to private conduct; rather, every indication is that this statute was designed to regulate public conduct which would be considered offensive.

Whether or not the conduct which the loitering was in anticipation of is deemed criminal, it is clear that the State retains a very valid reason for proscribing loitering to solicit. Indeed, in recommending an almost identical statute, the drafters of the Model Penal Code recognized the continuing validity of this type of statute despite t adoption of the Reporters' recommendation to decriminalize consensual sodomy. "The rationale for retaining this offense is not the regulation of private morality but the suppression of public nuisance. Persons who publicly seek or make themselves available for deviate sexual relations openly flout community standards. Moreover, indiscriminate solicitation in public streets, parks, and transportation facilities is not only an affront to moral and aesthetic sensibilities; it is also a source of annoyance to, and harassment of, members of the public who do not wish to become involved. Section 251.3 is designed to protect the legitimate expectations of citizens in public places by proscribing this kind of annoying activity. For that reason the offense is not limited to loitering for hire, as is the case under Section 251.2 on prostitution." (Model Penal Code, § 251.3, Comment, at p. 476.)

In light of this background and its codification under "Public Order" in the Penal Law, I fail to perceive how the majority can conclude that the statute is not a harassment statute. There is no necessity that the statute require the conduct proscribed to be offensive or annoying to others. This statute embodies the Legislature's determination that public solicitation to engage in sexual conduct is necessarily offensive to others. While some may welcome such offers, there is nothing irrational in the Legislature's determination that the vast majority of people prefer to go about their everyday business without being stopped or solicited, especially when the solicitation involves offers to engage in the most intimate of activities.

Nor is it irrational for the Legislature to have decided that the presence of people soliciting in public to engage in sexual conduct is in and of itself annoying. In addition, such conduct can be annoying, offensive and even threatening to those who are not directly solicited but merely observe such conduct. It is not difficult to envision persons being annoyed and offended if the person they are walking with is solicited. Certainly such conduct is, at a minimum, an annoyance to those who reside in the immediate area who must witness the public solicitation of sexual partners. The Legislature's legitimate concerns with the interests of those people who desire only to live a quiet a private life mandates that it be allowed to determine when and where certain conduct is no longer protected but becomes harassment of others. Thus, I do not believe one can say, as does the majority, that "[t]he object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy." The statute just as clearly has as an object the regulation of conduct which becomes offensive because it occurs in public.

I am further troubled by the majority's reasoning because, although they do not state that they are invalidating the statute by application of the overbreadth doctrine, it seems to me that that rationale is implicit in their statement that (at p. 938, 460 N.Y.S.2d at p. 516, 447 N.E.2d at p. 63) "[i]nasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose." To my mind, a conclusion that the statute is unconstitutional based on this reasoning indicates that loitering in anticipation of consensual sodomy is protected just as consensual sodomy is protected. I fail to perceive what basis there is to invalidate a statute on reasoning that it reaches protected activity except on the basis that by encompassing that protected activity it is overbroad. The very concept of the overbreadth doctrine is that a statute which encompasses protected activity as part of an effort to proscribe other conduct is constitutionally flawed because of its scope--in other words, because it is overbroad. (Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15; Tribe, American Constitutional Law, § 12-24, pp. 710-724.)

The majority's reference to People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936, supra also leads me to conclude that the majority is depending, at least in part, on the doctrine of overbreadth. They conclude: "This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute." This court held section 130.38 of the Penal Law, which proscribed consensual sodomy to be unconstitutional "[b]ecause [it was] broad enough to reach noncommercial, cloistered personal...