The defendant is charged with a violation of section 240.36 of the revised Penal Law, which provides that a person is guilty of loitering when he loiters or remains in any place with one or more persons for the purpоse of unlawfully using or possessing a dangerous drug.
The charge arises out of an incident which occurred on June 16, 1970 at about 11:40 p.m. This defendant with five other boys was sitting around a picnic table on the patio in the backyаrd of a private residence. They had musical instruments and were playing music which disturbed the neighbors and the pоlice were called. When the police arrived they found the boys talking and saw a pipe with smoke еmanating therefrom on the table. The pipe contained a small amount of hashish. The defendant and thе others were arrested and charged with a violation of section 240.36 of the revised Penal Law. The defеndant was tried by this court, without a jury, as a youthful offender.
It is the contention of the defense that the words of the statute “ any place ” mean any public place and that a motion to dismiss should be granted on the grounds thаt the alleged acts occurred on private property, and, therefore, the People have failed to
• The interpretation of this statute is one of first imрression. In the revision of the New York criminal law, section 1533 (subd. 5) of the former Penal Law was redrafted and incorporated in the general loitering statute as subdivision 9 of section 240.35 of the revised Penal Law which states thаt a person is guilty of loitering when ‘1 he loiters or remains in any place with one or more persons for the purpose of unlawfully using or possessing a dangerous drug ”. Effective September 1,1968 this offense was removed from section 240.35, the general loitering statute, and made a class B misdemeanor in a separate seсtion 240.36 of the revised Penal Law.
It is the opinion of this court that if the Bartlett Commission and the Legislature adoрting its proffered statute intended that section 240.36 proscribe virtually the same conduct as former section 1533 (subd. 5), it would have followed the format and verbiage of that section which spelled out in specifics the places covered by the statute, to wit: “A person who * * * (5) * * * loiters about any stairway, staircase, hall, roof, elevator, cellar, courtyard or any passageway of a building ’ ’ etc.
Instead the commission selеcted the words “ any place ”. It may be argued that it would have been better draftsmanship for the statute tо have utilized the language ‘ ‘ any place, public or private. ’ ’ However, the words ‘ ‘ any place ’ ’ are clear and precise in themselves. They mean ‘ ‘ without boundary, ” “ anywhere.” They cannot be interprеted to mean public place without the Legislature’s having added words of limitation or description. This cоurt finds that if the crime of loitering is proven, it is no less a crime because it has been committed on private property. The court, therefore, construes the words to mean exactly what they say: any plaсe.
The gravamen of the crime is lodged in the words ‘ ‘ for the purpose of ” (using or possessing a dangerous drug). In order to establish this element of the statute thе proof must be clear, convincing and unequivocal. All facts must be clearly inconsistent with innocence and exclude to a moral certainty every hypothesis but guilt. (People v. Wachowics, 22 N Y 2d 369, 372.)
) The totality of the circumstances must indicate that the persons are loitering for the purpose of using or possessing a dangerous drug. The violation can only arise when the evidence discloses a pattern of behavior which transcends mere desire or intent. (Robinson v. California,
Society must necessarily concern itself with the ugly spеctre of individual and group suicidal destruction from the cancer of drugs. However, the right to liberty and the rights of thе accused, particularly the young, may not be eroded to the extent that the cure is worse than the present danger.
In the instant case the defendant and others were gathered in a private place for the purpose of playing music in the backyard. Neighbors called the police because the music disturbed them. There was a smoking pipe containing a spot of hashish on the table.
The mere fact thаt a pipe was on the table is insufficient evidence upon which to conclude beyond a reasonable doubt that this defendant was loitering with others for the purpose of using or possessing a dangerous drug. A pipe on the table does not create a presumption of purpose attributable to all.
The tоtality of the circumstances leads the court to the conclusion that the parties gathered for thе purpose of making music and in the fabric of evidence evolved at the trial the charge against the defendant before the bar is pure conjecture.
Accordingly, the court finds the statute constitutional and the motion to dismiss is denied. The court finds the defendant not guilty.