People v. Willmott

• Decision Date: 11 September 1971
• Citation: 67 Misc.2d 709,324 N.Y.S.2d 616
• Parties: PEOPLE of the State of New York v. Richard WILLMOTT, Defendant.
• Court: New York Villiage Court

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.

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

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 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.

Subdivision (6) of Sec. 240.35 was held to be constitutional in People v. Taggart, Sup., 320 N.Y.S.2d 671, by a court of first instance.

Although People v. Diaz, 4 N.Y.2d 469, 470, 471, 176 N.Y.S.2d 313, 315, 151 N.E.2d 871, struck down a loitering ordinance as too vague, indefinite and uncertain to define a crime and made no distinction between conduct calculated to harm and that which is essentially innocent, it enunciated the rule to be applied to determine statutory validity. It said, 'It is the rule that for validity a criminal statute must be informative on its face (People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949 (146 N.E.2d 682)) and so explicit that 'all men subject to their penalties may know what acts it is their duty to avoid' (United States v. Brewer, 139 U.S. 278, 288, 11 S.Ct. 538, 541, 35 L.Ed. 190; People v. Vetri, 309 N.Y. 401, 131 N.E.2d 568). While the term 'loiter' or 'loitering' has by long usage acquired a common and accepted meaning, (People v. Bell, 306 N.Y. 110, 115 N.E.2d 821), it does not follow by itself, and without more, such term is enough to inform a citizen of its criminal implications and, by the same token, leave it open to arbitrary enforcement. * * *. Whenever a conviction for loitering has been upheld, it is because the statute uses the term 'loiter' or 'loitering' to point up the prohibited act, either actual or threatened * * *.'

Applying that test to subdivision 3 of Sec. 240.35, it sufficiently informs a person of the criminal implications of the loitering and points up the prohibited act. It is not loitering by itself which is prohibited but loitering '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' which is proscribed. That subdivision sufficiently informs a person of common understanding of what is forbidden. It is not...