185 Misc. 2d 565 | N.Y. City Crim. Ct. | 2000
OPINION OF THE COURT
The defendant has been charged with (1) menacing in the second degree (Penal Law § 120.14 [1]); (2) reckless endangerment in the second degree (Penal Law § 120.20); (3) possession of a police shield, emblem, uniform or buttons (Administrative Code of City of NY § 14-107); and (4) harassment in the second degree (Penal Law § 240.26 [1]). He moves to dismiss the accusatory instrument as defective (CPL 170.30 [1] [a]; 170.35 [1] [a]).
A legally sufficient misdemeanor complaint must set forth “facts of an evidentiary character” demonstrating “reasonable cause” to believe that the defendant committed the charged offense. (CPL 100.15 [3]; 100.40 [4] [b]; People v Dumas, 68 NY2d 729 [1986].) In order to convert the complaint into a triable information, the People must set forth “non-hearsay allegations [which] establish, if true, every element of the offense charged and the defendant’s commission thereof.” (CPL 100.40 [1] [c].) A legally sufficient information must contain nonhearsay allegations establishing, if true, every element of the offense charged and the defendant’s commission thereof. A complaint or information which fails to satisfy these requirements is j uris diction ally defective. (See, CPL 100.40 [1]; 100.15 [3]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729, supra.)
The factual allegations contained in the present accusatory instrument, which is supported by the signed deposition of the complaining witness, read as follows: “Deponent states that at the above mentioned date, time and place of occurrence, he is informed by the complainant, Luis Rodriguez, that the defendant, Khurram Iftikhar, did fire a gun placing the complainant in fear of serious physical injury. Deponent further states that the actions of the defendant did also cause him to become alarmed and annoyed. Deponent further states that he did recover a full size detective shield from the defendant’s right rear pocket. (108 Precinct voucher# AB813758.)”
In count one, charging defendant with menacing in the second degree, the sole factual allegation is that defendant “fire[d] a gun.” There are no allegations in the accusatory instrument that the defendant pointed the gun at the complainant, or used it in any way so as to intentionally put him in reasonable fear of “physical injury, serious physical injury or death,” or that defendant “display[ed]” anything to Rodriguez, much less something that “appears to be” some kind of firearm. (Penal Law § 120.14 [1].) In fact, the accusatory instrument does not even allege the physical proximity of defendant to the complaining witness at any time during the incident. As far as the court can tell, defendant might have been a block away at the time. Again, the People may not utilize the unsworn facts contained in their opposition papers to plug these jurisdiction-ally critical gaps (CPL 100.40 [4] [b]; 100.45 [3]).
For similar reasons, count four, charging second degree harassment, is also deficient. There are no factual allegations contained in the accusatory instrument showing whether or how the defendant’s act of “fir[ing] a gun” was observed by Rodriguez, the physical positions or proximity of the parties, or any other circumstances demonstrating reasonable cause to believe that the claimed act reasonably could have served to harass, annoy or alarm Rodriguez, or threaten him with physical harm. Again, if those facts exist, as the People now suggest in their opposition, they ought to have been incorporated into the accusatory instrument.
Initially, with respect to count three, the court notes that the People have mistakenly charged the defendant under “AC § 14-187,” which they entitle “Possession of a Police Shield, Emblem, Uniform or Buttons.” The correct section of the Administrative Code would appear to be section 14-107, which is defined as follows:
Ҥ 14-107 Unlawful use of police uniform or emblem.
“It shall be unlawful for any person not a member of the police force to represent himself or herself falsely as being such a member with a fraudulent design upon persons or property, or to have, use, wear or display without specific authority from the commissioner any uniform, shield, buttons, wreaths, numbers or other insignia or emblem in any way resembling that worn by members of the police force.”
Defendant attacks the People’s application to him of this section of the Administrative Code, which has not been construed in any published court opinion, on the ground that it is “facially unconstitutional, vague and overbroad” under the “First and Fourteenth Amendments to the United States Constitution and Article I, §§ 8, 11 of the Constitution of the State of New York.” The focus of defendant’s complaint is that the portion of the statute upon which the People are proceeding, which makes it a crime to “have, use, wear or display without specific authority from the commissioner any uniform, shield, buttons, wreaths, numbers or other insignia or emblem in any way resembling that worn by members of the police force” (emphasis added), is constitutionally void for vagueness.
In People v Bright (71 NY2d 376, 382 [1988]), the Court of Appeals summarized the standard for review applicable to criminal laws that are purportedly unconstitutionally vague: “An enactment of our Legislature is presumed to be valid and the heavy burden of demonstrating that a statute is unconstitutional rests with the one seeking to invalidate the statute (Matter of Van Berkel v Power, 16 NY2d 37, 40; Fenster v Leary, 20 NY2d 309, 314; People v Pagnotta, 25 NY2d 333, 337). In a challenge to the constitutionality of a penal law on the grounds of vagueness, it is well settled that a two-pronged analysis is required. First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement (see, Kolender v Lawson, 461 US 352, 357; Grayned v City of Rockford, 408 US 104, 108-109; Papachristou v City of Jacksonville, 405 US 156, 162; People v Nelson, 69 NY2d 302, 307; People v Smith, 44 NY2d 613, 618; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 234; People v Heller, 33 NY2d 314, 328;
The second portion of Administrative Code § 14-107, at issue here, does not satisfy either prong of the vagueness test. First, because it criminalizes mere possession of “any uniform, shield, buttons, wreaths, numbers or other insignia or emblem in any way resembling that worn by members of the police force,” without any specific scienter element, it requires that citizens know that merely “hav[ing]” anything “resembling” such items is unlawful. Notably, it is possession of any one of these items, even in isolation, that is prohibited; the statute does not require that a violator “have” some combination of them.
Common experience, however, demonstrates that the vague wording of the ordinance may make these distinctions exceptionally difficult, even for the innocent-minded. For example, the fashion industry periodically produces long navy blue coats with brass buttons that are meant to “resemble” a police uniform. “Buttons” resembling those worn by police officers are available at Army/Navy stores. “Insignia and emblems,” vague terms in themselves, are available in any number of stores and some of those certainly resemble in one way or another the insignia and emblems adopted by the New York Police Department. And, as to the category of police shields, at issue here, their commercial infiltration into our culture ranges from children’s toy sheriff and detective badges, once advertised on breakfast cereal boxes, to police-like badges and insignia worn by many kinds of private security employees. Simply put, this statute provides the average citizen “of ordinary intelligence” no guidance whatsoever, and therefore supplies no fair notice, as to what form of possessory conduct is permitted and which is prohibited. (See, People v Smith, 44 NY2d 613, 618 [1978], supra.)
The section also fails the second prong of the constitutional vagueness test because it leaves a police officer free to exercise his unfettered discretion in determining whether a shield possessed by a defendant is sufficiently akin to an official police badge as to warrant arrest. Indeed, by deliberately using maximally broad language — “in any way resembl[es]” — the Administrative Code section eschews “objective, ascertainable standards” and permits each individual officer to “apply the statute based upon [his or her] own personal ideas of right and wrong.” (People v Foley, 94 NY2d 668, 682 [2000], citing People v Bright, 71 NY2d, supra, at 383; People v New York Trap Rock Corp., 57 NY2d 371, 376 [1982].) As the Court of Appeals
The court is aware that in this case the accusatory instrument describes defendant’s shield as a “full size detective shield,” and that this description is substantially more detailed than the broad language of the statute. However, even assuming the literal accuracy of that description, this is not a situation in which this defendant’s conduct was so “plainly within the ambit of the statute,” such that the court is “strain [ing] to imagine marginal situations in which the application of the statute is not so clear.” (People v Nelson, 69 NY2d 302, 308 [1987], supra.) The portion of the ordinance upon which the People are proceeding punishes possession per se, and, indeed, here there are no allegations in the accusatory instrument that defendant did anything with the shield other than carry it in his pocket. The People may not prosecute defendant for violating this portion of the Administrative Code on the simple allegation that he had the shield in his pocket. To do so would permit a police officer to determine, without legislative guidance, that this “full size detective shield,” whether it was a near duplicate of a real detective’s shield or a child’s plastic toy, was criminal because it was covered by the “in any way resemblfes]” umbrella of the statute. The constitutional guidelines set down by the New York Court of Appeals do not permit the law to be applied in that manner. Consequently, this section of the Administrative Code is unconstitutionally vague and this count of the accusatory instrument must be dismissed.
Finally, the People may not save this count by relying upon the assertions in their opposition papers that defendant actu