People v. Wood

• Decision Date: 10 February 1978
• Citation: 402 N.Y.S.2d 726,93 Misc.2d 25
• Parties: The PEOPLE of the State of New York, v. Walter Wayne WOOD, Eldridge Benjamin Wiltz, Jr., Schon Wayne Stroud, Defendants.
• Court: New York Justice Court

Page 726

402 N.Y.S.2d 726

93 Misc.2d 25

The PEOPLE of the State of New York, v. Walter Wayne WOOD, Eldridge Benjamin Wiltz, Jr., Schon Wayne Stroud, Defendants.

Justice Court, Town of Greenburgh, Westchester County.

Feb. 10, 1978.

Joel H. Sachs, Town Atty., Elmsford, for plaintiff; Steven M. Silverberg, Deputy Town Atty., Town of Greenburgh, Elmsford, of counsel.

McCarthy, Fingar, Gaynor & Donovan, White Plains, for defendants; Charles M. Feuer, White Plains, of counsel.

OPINION AND DECISION

ASCHER KATZ, Town Justice.

The defendants, three young men who are affiliated with the Unification Church in Tarrytown, New York, are charged with peddling without a license in violation of the Peddling and Soliciting Law of the Town of Greenburgh. The complaint ¹ alleges upon direct knowledge of Patrolman F. A. Bohling, Jr. of the Greenburgh Police Department that defendants solicited money by giving out lollypops in the Dalewood Shopping Center on Central Avenue in Hartsdale, New York. The Greenburgh ordinance, predicated on the police power of the Town, ² requires a license ³ to engage in the business of peddler ⁴, who is defined as a person who in any public place on foot sells or barters or offers for sale any merchandise. Charitable, religious or political organizations are exempted ⁵ from the application of the Law. Although representatives of the defendants obtained forms to receive the exemption from the Town before the issuance of the Criminal Complaint, the forms were not filed with the Town officials.

After arraignment, defendants moved to dismiss the information on the grounds that it is defective within the meaning of CPL 170.35(1) for being insufficient upon its face pursuant to the requirements of CPL 100.40, more specifically, that the information failed to show that there is reasonable cause to believe that the defendants are the ones who committed the offense charged and that the factual allegations in the information, if true, failed to establish every element of the offense charged and, (2) in that the Peddling and Soliciting Law of Greenburgh violates the Fourteenth Amendment of the United States Constitution because of vagueness and indefiniteness and as applied to the instant case.

The Greenburgh Peddling and Soliciting Law, Local Law No. 5, 1975, is a comprehensive enactment established to protect the community and not as a revenue raising measure ( § 21-1 Greenburgh Town Code ^*). It prohibits peddling ( § 21-3 G.T.C.) and soliciting § 21-5 G.T.C.) as defined ( § 21-2 G.T.C.) by anyone who has not first applied for ( § 21-7 G.T.C.) a license with a clear exemption for any bond fide charitable, religious or political organization ( § 21-6 G.T.C.). The Town Clerk is required to inquire into an applicant's qualifications and must issue or deny a license and his denial or revocation is subject to review by the Greenburgh Town Board ( § 21-8 G.T.C.). The Town Clerk is required to keep an accurate record of all licenses issued ( § 21-11 G.T.C.). There are reasonable and defined restrictions on all peddlers and solicitors ( § 21-9 G.T.C.). A license may be revoked by the Clerk after written notice for fraud or misconduct ( § 21-10 G.T.C.). Violation of the licensing provision is a misdemeanor punishable by a fine of not more than One Hundred Dollars or by imprisonment of not more than six months. ( § 21-12 G.T.C.).

The Court of Appeals of New York has defined the term Peddler in the following way:

". . . he is a peddler who travels about the country, carrying wares for sale in small quantities. The dominant idea involved in such an occupation seems to be that the individual carries his stock in trade, consisting in small wares, on foot, or in a vehicle, about the country, offering them for sale and then and there selling them" Village of Stamford v. Fischer, 140 N.Y. 187, 191, 35 N.E. 500, 501. See also 26 N.Y.Jur., Hawkers and Peddlers § 1.

The Greenburgh Town Code definition of Peddler in § 21-3 is wholly consistent with that of the highest court of this State as set forth in the Stamford case above.

Defendants deny that their conduct comes within the ambit of the Greenburgh Town Code. They claim that their activities involved merely the giving of a lollypop with the simultaneous request for money and this did not give rise to a sale. Such a construction does violence to the plain meaning of the law. It is clear that the giving of the lollypops was not for the purpose of furnishing any religious instruction or to make a gift to the public. The reason for offering the lollypop was to obtain funds for the Unification Church. While the acts of the individual defendants may have been charitable in the sense that they donated their time to the Church, such gratuitous activity by them has no relevance in this proceeding. Under the Uniform Commercial Code, title passes from a seller to a purchaser upon the payment of the price. § 2-106(1) Uniform Commercial Code. Defendants rely on the case of Village of Stamford v. Fischer, 140 N.Y. 187, 35 N.E. 500, above. The holding of the Stamford case was that the defendant could not be charged with peddling when he had a fixed place of business and his sole activity was delivery to the homes of customers from whom he had previously received orders. This does not support the position of the defendants. Rather, it appears that the framers of the 1975 Greenburgh Town Code recognized the rationale of Stamford and specifically provided for an exemption of a sale made by a person who has an established place of business as set forth in § 21-4 G.T.C. Defendants also cite People v. Barber, 289 N.Y. 378, 46 N.E.2d 329, and People v. Gage, 179 Misc. 638, 38 N.Y.S.2d 817, in support of their position. In the Barber and the Gage cases, defendants gave out religious publications in return for contributions. This is a far cry from distributing lollypops. The sale of the lollypop imports no religious activity and has no reverential connotation. There is no showing upon this record as to the nature and extent of the peddling activity. The peddling may have been a mere ancillary endeavor by the Unification Church to obtain some funds or may have represented the tip of an iceberg involving the movement of significant sums of money by a highly motivated, unpaid cadre of the Unification Church. This latter activity could well generate taxable income within the meaning of §§ 501, 511-514 Internal Revenue Code. There is no showing that the church has qualified its activities under the Internal Revenue Regulations and its income derived therefrom could well be taxable. United States v. Community Services, Inc., 189 F.2d 421 (4th Cir., 1951); Ralph H. Eaton Foundation v. Commissioner, 219 F.2d 527 (9th Cir., 1955); see Monterey Public Parking Corp. v. United States of America, 321 F.Supp. 972, 976 (U.S.D.C., N.D.Cal., 1970).

The objective of the Peddling and Soliciting Law of the Town of Greenburgh is to protect the community. It is an exercise of a legislative objective "to protect the citizens of the State against the cheats and frauds, or even thefts, which as the experience of ages has shown, are likely to attend the itinerant and irresponsible peddling from place to place and from door to door". Emert v. Missouri, 156 U.S. 296, 311, 15 S.Ct. 367, 370, 39 L.Ed. 430. This Court finds that there is no ambiguity in the Greenburgh Town Code and it is a valid exercise of police power.

CPL 100.40(1), relating to local criminal court accusatory instruments states as follows:

"1. An information, or a count thereof, is sufficient on its face when:

"(a) It substantially conforms to the requirements prescribed in § 100.15 ⁶, and

"(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the accusatory part of the information; and

"(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

The factual portion of the information alleges that the defendants were exchanging lollypops for monies for the benefit of the Unification Church without first having obtained a license to do so. This is alleged upon direct knowledge of the complainant, and if true, establishes each and every element of the violation within the definition of the Greenburgh Town Code prohibiting the selling or bartering of goods, wares or merchandise by going from place to place on foot without first obtaining a license as required by the Code. The information is sufficient on its face. People v. Bohoy, 61 Misc.2d 1096, 307 N.Y.S.2d 254, Practice Commentary CPL § 100.40.

Defendants also attack the statute as being vague in that a determination is required by some functionary that the solicitation is made for a bona fide charitable, religious or political organization. They claim that the Town Code fails to have any definition of religion and contains no definitions or criteria or standards for a person to determine whether the religious organization for which he seeks to solicit funds is bona fide or qualified by a competent governmental body. In support of these contentions the defendants cite People v. Abrahams, 40 N.Y.2d 277, 386 N.Y.S.2d 661, 353 N.E.2d 574 (finding unconstitutional the New York Sunday Laws due to the crazyquilt exceptions to the general closing directive, destroying any rational basis for the avowed purpose of the Law); People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411 (where the New York City Anti-Loitering Statute was found unconstitutional for placing virtually unfettered discretion in the hands of the police thereby encouraging arbitrary and discriminatory enforcement and for failing to give adequate notice of the conduct to be avoided), People v. Munoz, 9 N.Y.2d 51, 211 N.Y.S.2d 146, 172 N.E.2d 535 (where an ...