People v. Walkenhorst
| Decision Date | 13 February 1968 |
| Citation | 287 N.Y.S.2d 760,55 Misc.2d 935 |
| Parties | 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 | New York Court of Special Sessions |
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.
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 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 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 guilty, and at that time move to dismiss on the same grounds set forth in the memorandum of law originally submitted.
On January 16, 1968, defendants, Roy F. Walkenhorst and James S. Toedtman, appeared with their attorney, David B. Pressman, and Charles Metz, Esq., on behalf of the Village. On being arraigned the defendants waived a reading of the information and the facts were subsequently stipulated between Messrs. Pressman and Metz in writing, a copy of which is annexed hereto.
At the conclusion of oral argument, defendants' counsel again moved to dismiss the informations on the ground that the ordinance is unconstitutional on its face as being in violation 'of the First Amendment to the Bill of Rights and a violation of Sections 6, 8 and 11 of Article I of the Constitution of the State of New York, a violation of the due process XIV Amendment of the United States Constitution, violation of Section 80 of the General Municipal Law of the State of New York as violation of the equal protection under the laws'. He then added that even if 'this ordinance is not unconstitutional on its face, that as applied here to a non-commercial distribution under the laws of the United States as shown in the Martin v. City of Struthers case (319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313), this ordinance is unconstitutional as applied herein'.
Referring to defendants' contentions that this ordinance violates certain clauses and/or Articles of the New York State Constitution, and laws of the State of New York, all as set forth in the defendants' memorandum of law, similar ordinances have been twice reviewed by the Court of Appeals. In the case of People v. Bohnke, 287 N.Y. 154, 38 N.E.2d 478 and again in the case of Watchtower Bible & Tract Society, Inc. v. Metropolitan Life Insurance Co., 297 N.Y. 339, 79 N.E.2d 433, 3 A.L.R.2d 1423, (which cites and reaffirms Bohnke) the law was found constitutional and not in violation or in conflict with any other law or laws of the State of New York. This is still the law of the State of New York and defendants' contention in that respect is not sustained.
Defendants also allege violations of the Constitution of the United States,...
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