People v. Willmott

CourtNew York Villiage Court
Citation67 Misc.2d 709,324 N.Y.S.2d 616
Decision Date11 September 1971
PartiesPEOPLE of the State of New York v. Richard WILLMOTT, Defendant.

Page 616

324 N.Y.S.2d 616
67 Misc.2d 709
PEOPLE of the State of New York
v.
Richard WILLMOTT, Defendant.
Village Justice Court, Village of Ocean Beach, Suffolk County.
Sept. 11, 1971.

Page 617

George J. Aspland, Dist. Atty. by Ronald Lipetz, Hauppauge, and Noah L. Braunstein, New York City, for the People.

Charles A. Hickmann, Huntington, for defendant.

DECISION

[67 Misc.2d 710] BENJAMIN WM. MEHLMAN, Village Justice.

Defendant is charged with violating Section 240.35, subdivision 3, of the Penal Law which states:

'Sec. 240.35 Loitering.

A person is guilty of loitering when he: * * *. 3. Loiters or remains 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; * * *.'

Defendant moves for permission to withdraw his plea of not guilty for the purpose of interposing a Demurrer to the Information, or, in the alternative, dismissing the Information on the ground the 'ordinance' the defendant is accused of violating is void for vagueness and for lack of due process in violation of the First and Fourteenth Amendments to the Constitution of the United States. The proposed Demurrer alleges that the words the defendant uttered are protected by the free speech guaranty of the First Amendment.

Neither the Code of Criminal Procedure nor the present Criminal Procedure Law sanction a Demurrer to an Information. The motion will therefore be treated as one for dismissal of the Information (People v. Mackey, 61 Misc.2d 799, 306 N.Y.S.2d 502) in which case the allegations of the Information are deemed to be true. (People v. Chester, 4 Misc.2d 949, 158 N.Y.S.2d 829).

The presumption of constitutionality of a legislative act is well recognized and courts of first instance should not declare a statute unconstitutional unless its invalidity is demonstrated beyond a reasonable doubt. (People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253

Page 618

N.E.2d 202; Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 541).

It does not appear that any reported decision has expressly passed on the constitutionality of subdivision 3 of Sec. 240.35, or of Sec. 722(8) of the former Penal Law from which it has been drawn. A number of decisions have upheld convictions under former Sec. 722(8), and the courts have also upheld the constitutionality of other loitering statutes. Thus, People v. Merolla, 9 N.Y.2d 62, 66, 211 N.Y.S.2d 155, 158, 172 N.E.2d 541, 544, sustained a conviction for violation of Sec. 7 of the Waterfront Act which prohibited loitering within specified places and areas, stating that the term 'loitering' is possessed of sufficient clarity and definition in context.

People v. Bell, 306 N.Y. 110, 115 N.E.2d 821, upheld the constitutionality of Sec. 1990--a of the former Penal Law which prohibited loitering about toilets, railway platforms, and similar places.

People v. Johnson, 6 N.Y.2d 549, 190 N.Y.S.2d 694, 161 N.E.2d 9, held that Sec. 722--b of the former Penal Law, a loitering section was valid because it sufficiently informed the public of the proscribed act.

[67 Misc.2d 711]...

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8 practice notes
  • State v. Allen, No. 512
    • United States
    • Superior Court of Connecticut
    • June 6, 1980
    ...46 L.Ed.2d 125 (1975); Cherry v. State, 18 Md.App. 252, 306 A.2d 634 (1973); People v. Willmott, 67 [37 Conn.Supp. 513] Misc.2d 709, 324 N.Y.S.2d 616 (1971); State v. Carter, 89 Wash.2d 236, 570 P.2d 1218 (1977). "(W)hile freedom of communicating information and disseminating opinion e......
  • State ex rel. Williams v. City Court of Tucson, No. 2
    • United States
    • Court of Appeals of Arizona
    • April 9, 1974
    ...Misc.2d 191, 320 N.Y.S.2d 456 (1971); Burmeister v. New York Police Department, 275 F.Supp. 690 (S.D.N.Y. 1967). In People v. Willmott, 67 Misc.2d 709, 324 N.Y.S.2d 616 (1971), the court upheld the validity of a statute which prohibited loitering 'in a public place for the purpose of engagi......
  • People v. Smith
    • United States
    • New York Supreme Court — Appellate Term
    • February 17, 1977
    ...25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202 (loiters in a building 'for the purpose of unlawfully using' drugs); People v. Willmott, 67 Misc.2d 709, 324 N.Y.S.2d 616 (loiters 'for the purpose of soliciting another person to engage in deviate sexual intercourse')), from those loitering p......
  • People v. Smith
    • United States
    • New York City Court
    • October 15, 1976
    ...v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840). Two similar cases to the one now before the bench are that of People v. Willmott, 67 Misc.2d 709, 324 N.Y.S.2d 616, and People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202. At issue in Willmott was section 240.35, subdi......
  • Request a trial to view additional results
8 cases
  • State v. Allen, No. 512
    • United States
    • Superior Court of Connecticut
    • June 6, 1980
    ...46 L.Ed.2d 125 (1975); Cherry v. State, 18 Md.App. 252, 306 A.2d 634 (1973); People v. Willmott, 67 [37 Conn.Supp. 513] Misc.2d 709, 324 N.Y.S.2d 616 (1971); State v. Carter, 89 Wash.2d 236, 570 P.2d 1218 (1977). "(W)hile freedom of communicating information and disseminating opinion enjoys......
  • State ex rel. Williams v. City Court of Tucson, No. 2
    • United States
    • Court of Appeals of Arizona
    • April 9, 1974
    ...Misc.2d 191, 320 N.Y.S.2d 456 (1971); Burmeister v. New York Police Department, 275 F.Supp. 690 (S.D.N.Y. 1967). In People v. Willmott, 67 Misc.2d 709, 324 N.Y.S.2d 616 (1971), the court upheld the validity of a statute which prohibited loitering 'in a public place for the purpose of engagi......
  • People v. Smith
    • United States
    • New York Supreme Court — Appellate Term
    • February 17, 1977
    ...25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202 (loiters in a building 'for the purpose of unlawfully using' drugs); People v. Willmott, 67 Misc.2d 709, 324 N.Y.S.2d 616 (loiters 'for the purpose of soliciting another person to engage in deviate sexual intercourse')), from those loitering p......
  • People v. Smith
    • United States
    • New York City Court
    • October 15, 1976
    ...v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840). Two similar cases to the one now before the bench are that of People v. Willmott, 67 Misc.2d 709, 324 N.Y.S.2d 616, and People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202. At issue in Willmott was section 240.35, subdi......
  • Request a trial to view additional results

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