135 Misc. 2d 22 | N.Y. App. Term. | 1987
OPINION OF THE COURT
Judgment of conviction rendered April 25, 1985 is reversed, on the law, and the defendant’s motion to dismiss the loitering charge is granted and the matter is remitted to the Criminal
Defendant was arrested on charges, as set forth in the accusatory instrument, that he was present at the Port Authority bus terminal and unable to give a satisfactory explanation for his presence; and that, upon his arrest for so loitering, an envelope containing cocaine and a glass pipe was recovered from him. At his arraignment, defendant moved to dismiss the loitering charge as unconstitutional. After the court denied the motion, defendant pleaded guilty to loitering (Penal Law § 240.35 [7]) in satisfaction of both charges.
On appeal, defendant argues that the loitering statute is unconstitutional.
While it is true that People v Bell (supra) (where the Court of Appeals upheld a statute similar to the subject ordinance) has been cited with approval via string citations in cases which postdated the United States Supreme Court’s seminal Papachristou decision (see, People v Smith, supra, at 620; People v Berck, supra, at 570), it is clear that the reference to Bell has been made to support the principle that simple loitering statutes will be sustained in places of restricted public access, without reexamining the specific application at issue, i.e., whether a given railroad station or transportation facility is a place of such restricted public access as to render constitutionally permissible the enforcement on those premises of the statute in question. In considering the problem, it cannot be ignored that today a reference to a "station” or to a "transportation facility” will often have a more expansive meaning than might have been the case in 1953, when Bell was decided. Today many transportation facilities are multidi
Accordingly, since, unlike those more narrowly circumscribed loitering statutes which have been held to be constitutional in the wake of the Papachristou line of decisions, the instant statute neither delineates a definable act, in addition to loitering, which is to be observed nor delineates an area of a sufficiently restricted public access to sustain a proscription of mere loitering,* ***
Hughes, P. J., Sandifer and Ostrau, JJ., concur.
. A defendant by his plea of guilty does not forfeit the right on appeal to challenge the constitutionality of the statute under which he was convicted People v Lee (58 NY2d 491).
. Penal Law § 1990-a (2), the statute at issue in People v Bell (306 NY 110), provided that "[a]ny person who loiters about any toilet, station or station platform * * * of a railroad, or who is found sleeping therein or thereon and who is unable to give satisfactory explanation of his presence is guilty of an offense.”
. Notably, in People v Johnson (6 NY2d 549, 553), where the court upheld the statute prohibiting loitering on school grounds in part relying on People v Bell (306 NY 110), Judge Conway, in concurrence, stated: "I do not think the citations of cases involving railroad stations where people are accustomed to go to see their friends off on trains or to meet them is pertinent. Those places are public places — not school buildings crowded with children.
. Although People v Velazquez (77 Misc 2d 749) was not appealed, the Appellate Division, First Department, in People v Bright (125 AD2d 1016) has only recently summarily affirmed a revisitation by Rothwax, J., of the issues raised in Velazquez. In People v Bright, the defendant was arrested for loitering (Penal Law § 240.35 [7]) in Pennsylvania Station. Bright was searched incident to the loitering arrest and two credit cards were seized. Based upon Bright’s possession of the credit cards he was charged and subsequently indicted (NY County indictment No. 2648/85) for violating Penal Law § 165.45, criminal possession of stolen property in the second degree (the loitering charge was apparently dropped). Defendant moved to suppress the credit cards as the fruits of an illegal search. Justice Rothwax
. Even were we to assume that some facilities might properly be characterized as exclusively devoted to "transportation” and further assume that those facilities would otherwise qualify as places of sufficiently restricted public access to permit enforcement of a loitering statute on those premises, it is perhaps unrealistic to expect the public to readily distinguish between such specialized transportation facilities and mixed use "transportation facilities”.