59 N.Y.2d 51 | NY | 1983
OPINION OF THE COURT
Subdivision 2 of section 240.20 of the Penal Law, which prohibits making “unreasonable noise” with “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof”, is not unconstitutional, either for vagueness or for overbreadth. The order of the County Court of Monroe County should, therefore, be affirmed.
Defendants were arrested on November 29, 1980, and both were charged with violating subdivisions 2 and 5 of section 240.20 of the Penal Law.
The defendants moved to dismiss the information on the ground that subdivisions 1, 2 and 5 of section 240.20 are unconstitutionally vague or overbroad. Rochester City Court upheld subdivisions 1 and 5 but ruled subdivision 2 unconstitutionally vague on its face because the meaning of the term “unreasonable noise” depends on the ear and mind of the listener. Accordingly, the court dismissed the count of each information charging a violation of subdivision 2.
On appeal to the County Court of Monroe County, that court reversed and reinstated the subdivision 2 charges, holding that the culpability requirement (“with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof”) saved the statute. Defendants appeal by permission. Both defendants and the People have agreed to our review of the appeal on submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]).
Defendants argue with respect to vagueness that because noises, in and of themselves, are neither reasonable nor unreasonable, the term “unreasonable noise” is meaningless. Further, they argue, the statute here, like the ordinance at issue in People v New York Trap Rock Corp. (57 NY2d 371), attempts to govern every possible situation and thus provides inadequate standards for enforcement.
The term “unreasonable noise” is not incapable of definition. Rather, it describes a noise of a type or volume that a reasonable person, under the circumstances, would not tolerate (cf. People v Byron, 17 NY2d 64, 67; Kovacs v Cooper, 336 US 77, 79). Section 240.20 is largely based upon section 250.2 of the American Law Institute’s Model Penal Code,
People v New York Trap Rock Corp. (supra), is not to the contrary. The ordinance there at issue proscribed making “any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose,, health, peace or safety of a person” (57 NY2d, at p 375), and suffered from several defects not present in the instant statute. First, it provided a subjective standard — the annoyance, etc., of a person, rather than a neighborhood or the public — and thus was subject to enforcement according to the “ ‘malice or animosity of a cantankerous neighbor’ ” or the “ ‘boiling point of a particular person’ ” (57 NY2d, at p 380). Second, “the pervasive nature of its catchall effect” made it capable of ad hoc and discriminatory enforcement and incapable of a narrowing construction (57 NY2d, at p 381). Here, the objective standard of public disturbance, the requirement of unreasonableness, and the Narrowing effect of the fact that all of the other acts proscribed by the section are publicly offensive, permit, if they do not require, the construction above set forth.
The conclusion that, so construed, the státute is not unconstitutionally vague, accords with the holdings of the
For like reason the overbreadth contention cannot be sustained. Although the facts recited in the information involve speech, protected speech may be restricted as to time, place and manner (Heffron v International Soc. for Krishna Consciousness, 452 US 640, 647-648; cf. Kovacs v Cooper, 336 US 77, supra). The activity prohibited by section 240.20 is speech so unreasonably noisy as “to cause public inconvenience, annoyance or alarm”. Such a prohibition is not on its face impermissibly overbroad (State v Johnson, 112 Ariz 383, supra; People v Fitzgerald, 194 Col 415, supra; cf. Hess v Indiana, 414 US 105, 108, supra). On the present record we, of course, do not reach the question of constitutionality as applied.
For the foregoing reasons, the order of the County Court of Monroe County should be affirmed.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed.
. Section 240.20 of the Penal Law provides in full: "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or 4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or 5. He obstructs vehicular or pedestrian traffic; or 6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or 7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose. Disorderly conduct is a violation.”
. Section 250.2 of the Model Penal Code provides in pertinent part: “(1) Offense Defined. A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreason
. For like reason the doubt whether an unreasonable noise ordinance could survive a vagueness attack expressed in the ALI Model Penal Code Commentaries to section 250.2 (at p 347), which was predicated on the fact that “No case directly on point seems to have been decided” is no longer valid.