People v. Wilhelm
| Citation | 69 Misc.2d 523,330 N.Y.S.2d 279 |
| Parties | The PEOPLE of the State of New York v. Richard M. WILHELM (a/k/a Mason Wilhelm). |
| Decision Date | 30 March 1972 |
| Court | New York City Court |
Defendant was charged with violating Penal Law, Sec. 245.02, which reads in pertinent parts as follows:
By Information sworn to on February 17, 1972 the complaining witness, an undercover police officer, alleged the following facts herein excerpted and condensed by the court:
Defendant maintains that the statute in question is unconstitutional per se or as applied and also, or in the alternative, that the Information does not allege a crime and/or is otherwise insufficient.
Before this court proceeds to attempt to resolve the issues involved, it should be pointed out that this prosecution does not involve any claims of obscenity, public lewdness, offensive exhibition or coercion to submit to the alleged photographing. Purely and simply this prosecution involves the attempted photographing of a nude female who apparently consented to the arrangement and was a willing 'model'.
Moreover, this case quite apparently involves the attempted photographing of a willing model under circumstances at least suggesting a studio-type setting. (albeit perhaps not attaining the standards of studio facilities available to advanced professionals.) No claim is made that the posing or photographing itself was intended to be an exhibition or showing, (This actually is expressedly excluded by a factual allegation in the Information.) nor is there any claim that this occurred in public or under circumstances where the general public was invited to view the photographing. (Interestingly enough, if there was a public exhibition, even before minors, of the techniques of photographing and posing females, nude or partially nude, then the statutory exclusion could conceivably make it lawful!)
The prosecution must fail for at least two reasons. First of all, this court is required to construe the statute according to the fair import of its terms and the court, in construing a criminal statute, may not 'read in' a proscription where a reading of the terms does not create one.
Here a reading of the statute leads one to conclude that the legislature, in its presumed wisdom, has decided to proscribe the act of making available any public premises or place where a female appears 'clothed or costumed in such a manner' that a certain portion of her anatomy 'is not covered with a fully opaque covering'. Yielding apparently to the persuasive arguments of 'go-go girl' establishments and other show business or theater interests, the legislature deemed it appropriate to exclude such interprises from the general proscription. The legislature did not, however, feel similarly disposed toward other individuals, groups, institutions or interests which might have occasion to maintain premises wherein a female appears so clothed or costumed as to leave a designated portion of her anatomy uncovered by an opaque covering.
Whatever the legislative intent for the proscription, it is apparent that one of the elements of the offense is the appearance of a female 'clothed or costumed' in a certain manner. Interestingly the legislature did not feel compelled to address itself to females 'clothed or costumed' in such a manner as to leave uncovered their elbows, knees, pubic hair or genitalia. Nay, the legislature did not even choose to address itself in this section to the problem or question of the completely nude or fully unclothed female--and this, after all, is exactly the alleged gravamen in the Information. What we have here is simply a legislative concern that no one must furnish or maintain public premises or places where a female is so clothed or costumed that she appears with the areola portion of her breasts uncovered by a fully opaque covering.
No doubt the cause of these probable legislative omissions was due to simple oversight rather than any mammillary gland fixation. But the legislature has spoken and it has not said that the facts alleged in the Information herein are proscribed.
Barring, therefore, a clear legislative proscription of the conduct alleged in the Information, this court, of course, cannot enact one. It is for this reason that this court concludes that the Information herein does not allege the crime or offense cited.
However, this court is aware of the fact that it is possible for some men (and even higher courts) to construe this statute differently. (It has occurred to the court that even a 'strict constructionist'--whatever that is--may construe this statute more loosely, liberally or freely!) Therefore, it is felt appropriate to express the reasons why the prosecution herein must also fail for reasons beyond that of mere interpretation of statutory meaning.
Whatever the exact legislative intent behind this particular statute and whatever the meaning and purpose of this statute, it appears to the court that, at the very least, it is being invoked and applied in a manner violative of the due process and equal protection clauses of the United States Constitution...
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Tunick v. Safir
......In People v. Wilhelm, 330 N.Y.S.2d 279 (City Ct. Buffalo 1972), the City Court of Buffalo analyzed an earlier version of the statute, containing the same ......
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Tunick v. Safir, Docket No. 99-7823
...nude photography, I have found only two cases, by municipal courts, that arguably take conflicting positions. Compare People v. Wilhelm, 69 Misc. 2d 523, 330 N.Y.S.2d 279, 280-81 (City Ct. Buffalo 1972) (interpreting a predecessor version of the statute that had the same exception as the on......