33 N.Y.2d 831 | NY | 1973
The order of the Appellate Terra should be reversed, and the information dismissed. Statutes punishing indecent exposure, though broadly drawn, must be carefully construed to attack the particular evil at which they are directed (Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N. Y., 3 N Y 2d 237, 244-245). Section 245.01 of the Penal Law was aimed at discouraging “ topless ” waitresses and their promoters (see Practice Commentary by Denzer and McQuillan, McKinney’s Cons. Laws of N. Y., Book 39, Penal Law, § 245.01, p. 200). It should not be applied to the noncommercial, perhaps accidental, and certainly not lewd, exposure alleged (see People v. Ulman, 258 App. Div. 262, 263). Certainly, legislation may not control the manner of dress, absent commercial exploitation of exposure, or absent conduct or dress under circumstances creating or likely to create public disorder.
Order reversed, etc.
Chief Judge Ftjld and Judges Burke, Breitel, Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion.
