People v. Walkenhorst

CourtNew York Court of Special Sessions
Writing for the CourtALBERT A. RUBIN
Citation287 N.Y.S.2d 760,55 Misc.2d 935
Decision Date13 February 1968
PartiesPEOPLE of the State of New York, Plaintiff, v. Roy F. WALKENHORST, Defendant. PEOPLE of the State of New York, Plaintiff, v. James S. TOEDTMAN, Defendant.

Page 760

287 N.Y.S.2d 760
55 Misc.2d 935
PEOPLE of the State of New York, Plaintiff,
v.
Roy F. WALKENHORST, Defendant.
PEOPLE of the State of New York, Plaintiff,
v.
James S. TOEDTMAN, Defendant.
Court of Special Sessions of Village of Rockville Centre,
Nassau County.
Feb. 13, 1968.

Page 761

[55 Misc.2d 936] Charles Metz, Rockville Centre, for the People.

Pollan, Zimmer & Pressman, Melville, for defendants, David B. Pressman, Melville, of counsel.

OPINION OF COURT

ALBERT A. RUBIN, Justice.

Each of the defendants, Walkenhorst and Toedtman, was served with a summons for a violation of Village Ordinance 1.13, Section 1. While they were separate offenses--Walkenhorst having allegedly committed his at premises 621 North Long Beach Road, and Toedtman's allegedly at premises 609 North Long Beach Road, both cases have been treated as being identical by defendants' counsel, David B. Pressman, and for the purposes of this opinion, both cases will be treated together.

The Ordinance in question reads as follows:

ORDINANCE 1.13--SOLICITING ON PRIVATE RESIDENTIAL PROPERTY

Sec. 1--ENTERING UPON PRIVATE PROPERTY.

No person shall enter upon any private residential property in the Incorporated Village of Rockville Centre, Nassau County, New York, for the purpose of vending, pedding, or soliciting an order for any merchandise, device, book, periodical or printed matter whatsoever; nor for the purpose of soliciting alms or a subscription or a contribution to any church, charitable or public institution; nor for the purpose of distributing any handbill, pamphlet, tract, notice, or advertising matter; nor for the purpose of selling or distributing any ticket or chance whatsoever without the consent of the occupant of said premises previously given.

Sec. 2--EXCEPTION.

This ordinance is not to be construed to apply to any person who has been a bona fide resident of the Village of Rockville Centre

Page 762

for a period of at least six consecutive months last past, nor to any person who has maintained a place of business in the Village of Rockville Centre for a period of at least six consecutive months prior thereto, or his duly authorized representative.

The facts are clear and unequivocal. In precise form they are that on May 24, 1967, defendants were distributing experimental newspapers, door to door, at private residences in the Village of Rockville Centre. Each defendant received a summons[55 Misc.2d 937] charging him with violating Village Ordinance 1.13. Distribution was made by affixing the papers to a doorknob with a rubber band and/or depositing the newspaper in a mail box. No charge was made for the newspaper, nor was there any solicitation whatsoever. Neither defendant was a resident of or maintained a place of business in the Village of Rockville Centre, nor was either distributing the paper as a duly authorized representative of a resident or a place of business in the Village. (pp. 4 and 5 defendants' memorandum of law).

Originally--instead of pleading to the informations--the defendants made a motion to dismiss at the time of their arraignment, and submitted a memorandum of law in support thereof. Subsequently, and prior to any ruling or decision on the motion to dismiss, and prior to pleading, defendants submitted a demurrer, which specifically states the grounds as 'That the fact stated does not constitute an offense'. Charles Metz, Esq., attorney for the Village of Rockville Centre, submitted a memorandum of law on behalf of the People, and thereafter, on September 19, 1967, David Pressman, Esq., presented an oral argument to the Court on behalf of the defendants and their submitted demurrer.

On November 21, 1967, the Court informed defendants' attorney that the demurrer had been disallowed.

On December 2, 1967, Mr. Pressman advised the Court that he would bring the defendants before the Court on Tuesday evening, January 16, to enter their respective pleas of not...

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