306 N.Y. 352 | NY | 1954
Dissenting Opinion
(dissenting). This is an appeal by permission of an Associate Judge of this court from a judgment of the Appellate Part of the Court of Special Sessions of New York City, affirming the judgment of the City Magistrate’s Court of the City of New York which adjudged the defendant guilty of vagrancy as defined by clause (b) of subdivision 4 of section 887 of the Code of Criminal Procedure. The trial court imposed a sentence of imprisonment for a term of ninety days.
In January of 1952, a policewoman impersonated a young-woman who had placed an advertisement in a large New York daily in an endeavor to obtain a position as bookkeeper. The advertisement had carried her telephone number and at that number the defendant had telephoned the young woman. The
The defendant was charged with violating clause (b) of subdivision 4 of section 887 of the Code of Criminal Procedure. That section reads in part: “ Who are vagrants. The following persons are vagrants: * * * 4. A person (a) who offers to commit prostitution, or (b) who offers or offers to secure another for the purpose of prostitution, or for any other lewd or indecent act; or (c) * *
Sexual immorality conceived of as a form of vagrancy is of fairly recent origin and is not rooted in ancient law. The English vagrancy statutes had a very different history and purpose. (See Stephen, History of the Criminal Law of England [1883], Yol. Ill, pp. 203, 204, 266-275.) In New York common prostitutes were classed as disorderly persons in 1788 but it was not until subdivision 4 of section 887 of the Code of Criminal Procedure was enacted in 1915 that any specific acts incidental to prostitution were made punishable as vagrancy. (L. 1788, ch. 31, § 1; L. 1915, ch. 285, § 1.)
In view of the affirmance of the facts below, there can be no question as to the commission of acts by defendant which bring him within the provisions of clause (b) of subdivision 4. As the District Attorney writes in his brief: ‘ ‘ The defendant argues also that the proof against him was deficient because he could not have offered to secure males ‘ for the purpose of prostitution, ’ since a male cannot commit prostitution, and because there was no proof that he was to secure them 1 for any other lewd or indecent act ’ (brief pp. 33-37, 38). Without dwelling upon the logical infirmities of that argument, we think it sufficient to note that the defendant concedes that the proof tended to establish ‘ that defendant offered others or offered to secure others to have sexual intimacies with the complaining witness ’ (id., p. 36), which we add, would obviously be ‘ lewd or indecent ’ acts within the intendment of the statute.” (Emphasis supplied.)
The defendant makes many contentions which we find without merit. Briefly some of them are: (a) that it was not established
The judgment of the Appellate Part of the Court of Special Sessions should be affirmed.
Dye, Fuld and Van Voobhis, JJ., concur with Desmond, J.; Conway, J., dissents in opinion in which Lewis, Ch. J., and Fboessel, J., concur.
Judgments reversed, etc.
Lead Opinion
Defendant’s conduct, vicious as it was, did not make out the offense of vagrancy under clause (b) of subdivision 4 of section 887 of the Criminal Code. Subdivision 4 condemns various aspects and incidents of pandering and prostitution. What defendant did here was to suggest to a woman of good character, that she become a prostitute under his management, and she, of course, rejected the proposal at once. In extreme literalness of interpretation, it might perhaps be said that one who makes such a rejected suggestion “ offers to secure another for the purpose of prostitution ”. However, it is very seldom in our criminal law that a rejected suggestion of wrongdoing-amounts to a substantive crime or offense, and, even under the broad language of section 887, vagrancy is not proven unless the defendant has actually acted- as a pimp or prostitute, and has gone beyond tentative steps toward entering the business. Clause (b) of subdivision 4 describes a person who offers the services of another for purposes of prostitution or offers to secure the services of another for those purposes. Defendant did neither of those things, since there is no showing that he had a prostitute or customers available, but only that he was hoping to obtain a prostitute for whom he could act as procurer.
The judgments should be reversed, and the complaint dismissed.