People v. Williams

• Decision Date: 09 November 1967
• Citation: 286 N.Y.S.2d 575,55 Misc.2d 774
• Court: New York City Court
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Brandy WILLIAMS et al., Defendants. --C

Page 575

286 N.Y.S.2d 575

55 Misc.2d 774

The PEOPLE of the State of New York, Plaintiff, v. Brandy WILLIAMS et al., Defendants.

Criminal Court of the City of New York, New York County, Part 1--C.

Nov. 9, 1967.

Frank S. Hogan, New York City, Lawrence Goldman, Asst. Dist. Atty., for the People.

Anthony F. Marra, New York City, Donald Byrnes, New York City, Legal Aid Society, for defendants.

Burt Neuborne, New York City, H. John Hokenson and Kevin Monaghan, New York City, of counsel, New York Civil Liberties Union, amicus curiae.

AMOS S. BASEL, Presiding Judge.

OPINION

These 41 defendants are charged with loitering in violation of Section 240.35(6) of the Penal Law. This section reads:

'A person is guilty of loitering when he * * * Loiters, remains or wanders in or about a place without apparent reason and under circumstances which justify suspicion that he may be engaged or about to engage in crime, and upon inquiry by a peace officer, refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes.'

It appears in each case that the defendant is alleged to be engaged or about to engage in prostitution. In some cases it is additionally alleged that defendant upon inquiry by a police officer failed 'to give a reasonably credible account of her conduct and purposes.'

The informations are based upon observations of police officers in which they say they saw defendants, known or suspected prostitutes speak to two or three men while walking or standing on a public street. The officers did not overhear the conversations, did not know who the men were, they thereupon arrested defendants pursuant to the statute upon the grounds that they were engaged or about to engage in prostitution. In some few cases police officers in addition to the observations referred to, spoke to defendants and requested an explanation of their conduct. The accounts were not deemed 'reasonably credible' and defendants were then arrested. Some of these defendants Have no prior records for prostitution or otherwise.

Each defendant moves to dismiss the information on the grounds (1) the statute does not cover loitering by one alleged to be engaged in prostitution, and (2) the statute is unconstitutional.

The cases are submitted together, on consent, with separate verdicts to be entered in each case.

Loitering as defined in Section 240.35(6) became an offense in New York.

This Court takes judicial notice that these defendants are 41 of a group of alleged prostitutes who have been arrested and detained 2500 times for disorderly conduct and loitering in New York City since August 18th. (N.Y. Times, Sept. 26, 1967; P. 1, N.Y. Times, Sept. 27, 1967, P. 48, Oct. 1, 1967 (News of Week, P. 7)). This Court of its own knowledge is aware that except for a few isolated instances where defendants pleaded guilty, the disorderly conduct cases were dismissed. In many instances 'the girls' were arrested after 11:30 P.M., too late to be arraigned, night court had been adjourned, then kept overnight in a cell. In the morning they were brought to Court and released because the offenses for which they had been arrested could not be proven to have been committed by them.

In recent months, this city has been overrun by street walkers attracted to the sidewalks of New York by the largesse of the new Penal Law (effective September 1st, 1967) which reduced the maximum penalty for prostitution from six months' incarceration, or a possible 3 year reformatory term, to a maximum sentence of 15 days.

The appearance of this problem is not a happy event. These street girls are a health hazard and constitute an offense against public order and decency. 'The right of the normal, decent citizen to go about the streets without affront to his or her sense of decency should be the prime consideration and should take precedence over the interests of the prostitute and her customers.' Wolfenden Report, Report Of The Committee On Homosexual Offenses and Prostitution. Lancer Books Edition, P. 165. The constant public parading of the prostitutes' wares constitutes a nuisance with which the law must cope.

The pressure upon public officials by owners of restaurants, theatres, hotels and other business people in the areas frequented by these prostitutes has been tremendous. In response, the police, beset by many other problems which require all of their manpower to be committed at all times, to stem the rise of violent crime, resorted to mass arrests. In an effort to remedy the street walker situation with a minimum of police effort, the painstaking method of arresting prostitutes by plainclothesmen posing as customers, for soliciting them to engage in sexual relations was curtailed. The uniformed force was employed to make roundup arrests for disorderly conduct (congregating, refusing to move when requested by an officer). When the Courts opposed this activity (N.Y. Times, Sept. 26, 1967, P. 1, Sept. 27, 1967, P. 48) the arrests continued undiminished.

Law enforcement officials these days must bear heavy, difficult burdens under trying circumstances. But as long as we desire our constitutional system to survive, the rights of all individuals when confronted by the power of the state must be paramount even though this makes police work more difficult. If we are to preserve our form of democracy, the guarantee of the constitutional rights of even common street walkers must be the serious and careful concern of all of us. The right to the protection of the bill of rights cannot be limited to those whom society pronounces to be respectable. The policeman's lot may not be an easy one, but he must discharge it within constitutional limits. 'It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.' Henry v. United States, 361 U.S. 98, p. 104, 80 S.Ct. 168, p. 172, 4 L.Ed.2d 134. Once we decree that the end justifies the means as is here attempted, we have irreparably breached the constitutional dike.

'In this connection, one of our country's distinguished jurists has pointed out: 'The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law. '' Miranda v. State of Arizona, 384 U.S. 436, p. 480, 86 S.Ct. 1602, p. 1631, 16 L.Ed.2d 694.

As Mr. Justice Brandeis said in Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (dissenting opinion):

'In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means * * * would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.'

In the instant case, have we created a crime, loitering, to be 'used as a cloak or cover for arresting and convicting people for some other crime that cannot be proved or for conduct that is not a crime?' Justice Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.Journal, P. 1,...