32 N.Y.2d 567 | NY | 1973
Lead Opinion
On this appeal brought on constitutional grounds, we are called upon to determine the validity of section 240.35
Truly aware of the rule stated in People v. Pagnotta (25 N Y 2d 333, 337 [1969]) —that “ There is a strong presumption that a statute duly enacted by the Legislature is constitutional ” and ‘ ‘ that in order to declare a law unconstitutional, the invalidity of the law must be demonstrated beyond a reasonable doubt. (Matter of Van Berkel v. Power, 16 N Y 2d 37, 40.) ”, we find that the statute represents another violation of due process of law because it is not clear and positive as to give an unequivocal warning to the citizen of the rule which is to be obeyed.
It is a principle of due process, the Supreme Court declared in Papachristou v. City of Jacksonville (405 U. S. 156,162), that a penal law is void for vagueness when it “ ‘ fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden * @ ’ United States v. Harriss, 347 U. S. 612, 617 ”. Moreover, as this court wrote in People v. Dias (4 N Y 2d 469, 470), “ It is the rule that for validity a criminal statute must be informative on its face (People v. Firth, 3 NY 2d 472) and so explicit that ‘ all men subject to their penalties may Imow what acts it is their duty to avoid ’ (United States v. Brewer, 139 U. S. 278, 288; People v. Vetri, 309 N. Y. 401).” (See, particularly, People v. Bambino, 69 Misc 2d 387.)
The statute in the case before us is not informative on its face and utterly fails to give adequate notice of the behavior it forbids. The statute contains two substantive elements(1) loitering “in or about a place without apparent reason ”, (2) under circumstances which ‘ ‘ justify suspicion ’ ’ that a person ‘ ‘ may be engaged or about to engage in crime ”.
The loitering statutes which we have upheld against attack on the ground of vagueness are altogether different from the sort of provision here challenged. (See, e.g., People v. Pagnotta, 25 N Y 2d 333, supra; People v. Merolla, 9 N Y 2d 62; People v. Johnson, 6 N Y 2d 549; People v. Bell, 306 N. Y. 110.) In each of the cited decisions, the statutes before the court were sustained either because they clearly “ point [ed] up” the prohibited act (e.g., People v. Diaz, 4 N Y 2d 469, 471, supra; People v. Pagnotta, 25 N Y 2d 333, supra) or else restricted loitering only at specific facilities where the likelihood of illegal activity was notorious (e.g., People v. Merolla, 9 N Y 2d 62, supra; People v. Johnson, 6 N Y 2d 549, supra; People v. Bell, 306 N. Y. 110, supra). For instance, in Pagnotta (25 N Y 2d 333, 338, supra), we sustained a provision of the former
Not only is subdivision 6 of section 240.35 of the Penal Law unconstitutionally vague for the reason that it fails to give adequate notice of the conduct to be avoided and punished but also because it places virtually unfettered discretion in the hands of the police and thereby encourages arbitrary and discriminatory enforcement. (See, e.g., Papachristou v. City of Jacksonville, 405 U. S. 156,168-171, supra; see, also, Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim. L. Bull. 205, 220-224.) More specifically, the provision in question, containing as it does absolutely no guidelines governing the determination as to whether a person is engaged in suspicious loitering, leaves such determination solely up to the discretion of the police officer. Similarly, enforcement of the law depends entirely upon whether the arresting officer is satisfied that a suspect has given—as required by the statute to avoid arrest—a “ reasonably credible account of his conduct and purposes ”. As has been said with respect to such “ satisfactory account ” requirements in vagrancy statutes, ‘ ‘ It takes little imagination to perceive that the ‘ reasonable account ’ (or 1 good account ’ or ‘ satisfactory account ’) requirement of the ordinary vagrancy law operates simply as a charter of dictatorial power to the policeman.” (Amsterdam, op. cit., p. 223.) Thus, whether or not a suspect is hauled off to jail for suspicious loitering depends, for all intents and purposes, upon the whim of the policeman. (See, e.g., Seattle v. Drew, 70 Wn. 2d 405, 411.) In short, the absence
Still another aspect of vagueness fatally afflicts subdivision 6. By authorizing an arrest for loitering “ under circumstances which justify suspicion that [a person] may be engaged or about to engage in crime, ’ ’ subdivision 6 of section 240.35 plainly undercuts the constitutional requirement that arrests are lawful only upon a showing of “probable cause.” As the Supreme Court pointed out in the Papachristou case (405 U. S., at p. 169),
“We allow our police to make arrests only on ‘ probable cause, ’ a Fourth and Fourteenth Amendment standard applicable to the States as well as to the Federal Government. Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system, even when the arrest is for past criminality.
* * *
“ A direction by a legislature to the police to arrest all ‘ suspicious ’ persons would not pass constitutional muster. A vagrancy prosecution may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest.”
As bearing on this, it is interesting and relevant that the American Law Institute discarded a loitering provision (Model Penal Code, § 250.12 [Tent. Draft. No. 13,1961] )
In this case, the defendant may very well have been conscious of the importance of protecting the identity of a young lady who was “ the other party ” on a “ sparking expedition ”. Man
The overriding consideration is that subdivision 6 of section 240.35 is unconstitutionally vague on its face (see, e.g., Papachristou v. City of Jacksonville, 405 U. S. 156, supra; Palmer v. Euclid, 402 U. S. 544; People v. Dias, 4 N Y 2d 469, supra; Seattle v. Drew, 70 Wn. 2d 405, supra).
Accordingly, the judgment of conviction should be reversed and the complaint dismissed as section 240.35 (subd. 6) of the New York Penal Law is unconstitutional.
. “ § 240.35 Loitering.— A person is guilty of loitering when he : * 6 ° 6. 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 ”.
. The third conjunctive element of subdivision 6 that “ upon inquiry * * * [defendant] refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes ” is not actually a substantive element of the violation but rather a “procedural condition” to arrest under the statute.
. It is, of course, no answer to assert that the police will, in fact, attempt to administer the law in good faith and try not to abuse the virtually unrestricted discretion it confers. As the Supreme Court stated sometime ago, “ Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.” (Baggett v. Bullitt, 377 U. S. 360, 373.)
. Thus, section 250.12 of the Model Penal Code’s Tent. Draft No. 13 provides: “ A person who loiters or wanders without apparent reason or business in a place or manner not usual for law-abiding individuals and under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.”
. The revised loitering provision reads as follows (Model Penal Code, § 250.6 [Proposed Official Draft, 1962]): “A person commits a violation if he loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstances makes it impracticable, a peace officer shall prior to any arrest for an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Section if the peace officer did not comply with the preceding sentence, or if it appears at trial that the explanation given by the actor was true and, if believed by the peace officer at the time, would have dispelled the alarm.”
Dissenting Opinion
I would affirm.
Defendant was convicted of a violation of section 240.35 (subd. 6) of the Penal Law, which, in pertinent part, provides:
“ A person is guilty of loitering when he:
4!, 4V jj. TP TP W
“6. 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*575 fails to give reasonably credible account of his conduct and purposes ”.
The statute is one of many modern efforts to replace the utterly vague and status-type offenses that have been struck down as unconstitutional, despite their antiquity, which have borne the rubric of vagrancy or disorderly person offenses (e.g., Fenster v. Leary, 20 N Y 2d 309; Papachristou v. City of Jacksonville, 405 U. S. 156; Shuttlesworth v. City of Birmingham, 382 U. S. 87; see, Ann., Vagrancy Statutes—Validity, 25 ALB. 3d 792; Ann., Loitering Statutes—Validity, 25 ALB 3d 836; Ann., Disorderly Conduct—Vagueness, 12 ALB 3d 1448). These modern efforts have been generally accepted as desirable in order to give law enforcement officers powers to inhibit the consummation of “ inchoate ” crimes by footpads, pickpockets, burglars, and the like, on the hunt in pursuit of victims.
In this case, the police had been advised that certain residential premises would be temporarily unoccupied. On patrol, they observed defendant standing behind a tree, at 1:00 a.m., seeming to be examining the unoccupied premises. When questioned by the police, he refused to explain his presence, but more important, or even to identify himself. No other person was present and there was, of course, no indication of a tryst.
The statute, it is suggested, is not so vague as to preclude the denotation of conduct giving justifiable belief that a crime is being or is about -to be committed. It requires the following elements in conjunction :
1. Loitering without apparent reason.
2. Additional circumstances giving rise to suspicion of present or intended criminal activity.
3. Befusal to respond to inquiry by a peace officer by identifying one’s self and explaining the questioned conduct.
The arrest and conviction are not for any one of these grounds but were and must have been for all three. Moreover, to satisfy the important second requirement referring to “ circumstances ” there must be objective facts justifying suspicion. The measure would be the factual circumstances and not the police officer’s idiosyncratic capacity for suspicion. The quality of the factual circumstances and the strength of the inference that the defendant “ may be engaged or about to engage in crime ” would be for the courts to assess.
The majority in striking down the statute does not suggest that statutes defining inchoate offenses are necessarily invalid; they simply find this one wanting without suggesting what kind of statute would satisfy the public need (compare Seattle v. Brew, 70 Wn. 2d 405, where the court struck down a vague Washington statute and suggested section 250.6 of the A. L. I. Model Penal Code as a guide to drafting a new statute). That, of course, is the majority’s privilege, as it always is of any court. However, in the light of the serious effort by draftsmen for many years, including those of the American Law Institute, to evolve satisfactory language, one would hope that future draftsmen could be given more constructive encouragement.
True, the majority points to the draft of a similar provision in the A. L. I. Model Penal Code (§ 250.6), which, to be sure, has added words, but none that are not embraced in the language of the instant statute. ‘ ‘ Suspicion of crime ’ ’ obviously relates to “alarm for the safety of persons or property”. The Model Code in using as illustrations £ ‘ Among the circumstances which may be considered ”, defined factors in the disjunctive, two of which were present here, namely, refusal to identify one’s self and manifestly endeavoring to conceal one’s self (behind a tree). I would prefer the more detailed language of the Model Penal Code "but I have difficulty in seeing that the detail goes beyond the encompassing language of the instant statute.
The majority resists the criterion of “ suspicion ” in the instant statute. But the resistance, it is suggested, is misplaced.
For all these reasons, I would construe the statute narrowly and thus sustain its validity. Circumstances which justify suspicion must be objectively tested, as the statute contemplates, based either on observation or reliably reported information, which must support a strong inference, less than probable cause for an arrest, but more than speculation or merely subjective distrust that the person is likely to be engaged or about to engage in crime.
Accordingly, I dissent and vote to affirm the conviction.
Chief Judge Fuld and Judges Jones and Wachtler concur with Judge Burke ; Judge Breitel dissents and votes to affirm in a separate opinion in which Judges Jasen and G-abrielli concur.
Order reversed and the complaint dismissed.