48 N.Y.2d 334 | NY | 1979
OPINION OF THE COURT
The issues presented by this appeal are whether section B32-358.0 of the Administrative Code of the City of New York, which makes it a misdemeanor to abandon or willfully fail to perform, without justification, a home improvement contract, is unconstitutional (1) for vagueness because it fails to specify the required mental state and does not indicate what constitutes justification, or (2) because in violation of the Thirteenth Amendment’s proscription of involuntary servitude, and whether the evidence was sufficient to present a jury question. We hold that the evidence was sufficient on at least one of the remaining counts of the indictment and, therefore, reach the constitutional issues. Concluding that the section violates the Thirteenth Amendment and the acts of Congress in furtherance of it, we reverse and dismiss the remaining counts of the indictment and, therefore, do not reach the vagueness issue.
Defendant Bernard Lavender was president and sole stockholder of All-Weather Exteriors, Inc., a corporation estab
The provision under which defendant Lavender was convicted on the three counts still surviving is a part of article 42, by which the city regulates the home improvement business. Section B32-358.0 details the acts prohibited, violation of which prohibition is by section B32-365.0 made a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $1,000 or both. Subdivision 1 of section B32-358.0 prohibits "[abandonment
Defendant argues that a corporate officer may not be held criminally liable solely on the basis of acts performed by other officers or agents of the corporation and that in any event it was the burden of the People to show abandonment without justification. The evidence does not connect defendant Lavender with the Roberts or the Jones contract either at the inception of those contracts or later, but does connect him with the Bowman contract, not when it was made in May of
We are thus brought to consideration of the constitutional issues, but as already noted do not reach the vagueness question since we hold the provision in question unconstitutional because in violation of the Thirteenth Amendment
Since the Administrative Code provision quoted above is directed not at the fraud involved in receiving money in relation to a contract with the present intention not to perform, but solely at the failure to perform the services necessary to carry out the contract, it violates both the Thirteenth
Accordingly, the order of the Appellate Division, dated November 15, 1976, as modified by the order of that court, dated December 7, 1977, insofar as appealed from, should be reversed, and the remaining counts of the indictment should be dismissed.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.
Order reversed and the remaining counts of the indictment dismissed.
. So in the original. Probably should read "abandonment of’.
. Section 1 of the amendment reads: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have -been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” That provision is self-executing (Bailey v Alabama, 219 US 219, 241), but section 2 of the amendment also gives the Congress power to enforce the amendment by legislation.
. US Code (tit 42, § 1994) provides that "The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in any Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void” and US Code (tit 18, § 1581, subd [a]) requires that "(a) Whoever holds or returns any person to a condition of peonage, or arrests any person with the intent of placing him in or returning him to a condition of peonage, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”
. "The essence of the thing [peonage] is compulsory service in payment of a debt. A peon is one who is compelled to work for his creditor until his debt is paid.” (Bailey v Alabama, 219 US 219, 242, supra.)