93 Misc. 2d 25 | Justice Court of Town of Greenburgh | 1978
OPINION OF THE COURT
The defendants, three young men who are affiliated with the Unification Church in Tarrytown, New York, are charged
After arraignment, defendants moved to dismiss the information on the grounds that it is defective within the meaning of CPL 170.35 (subd 1) for being insufficient upon its face pursuant to the requirements of CPL 100.40, more specifically, that the information failed to show that there is reasonable cause to believe that the defendants are the ones who committed the offense charged and that the factual allegations in the information, if true, failed to establish every element of the offense charged and, that the peddling and soliciting law of Greenburgh violates the Fourteenth Amendment of the United States Constitution because of vagueness and indefiniteness as applied to the instant case.
The Greenburgh peddling and soliciting law, Local Law
The Court of Appeals of New York has defined the term peddler in the following way: "he is a peddler who travels about the country, carrying wares for sale in small quantities. The dominant idea involved in such an occupation seems to be that the individual carries his stock in trade, consisting in small wares, on foot, or in a vehicle, about the country, offering them for sale and then and there selling them”. (Village of Stamford v Fischer, 140 NY 187, 191; see, also, 26 NY Jur, Hawkers and Peddlers, § 1.)
The Greenburgh Town Code definition of peddler in section 21-3 is wholly consistent with that of the highest court of this State as set forth in the Stamford case above.
Defendants deny that their conduct comes within the ambit of the Greenburgh Town Code. They claim that their activities involved merely the giving of a lollipop with the simultaneous request for money and this did not give rise to a sale. Such a construction does violence to the plain meaning of the law. It is clear that the giving of the lollipops was not for the purpose of furnishing any religious instruction or to make a gift to the public. The reason for offering the lollipop was to obtain funds for the Unification Church. While the acts of the individual defendants may have been charitable in the sense that they donated their time to the church, such gratuitous activity by them has no relevance in this proceeding. Under the Uniform Commercial Code, title passes from a seller to a purchaser upon the payment of the price. (Uniform Commercial Code,
The objective of the peddling and soliciting law of the Town of Greenburgh is to protect the community. It is an exercise of a legislative objective "to protect the citizens of the State against the cheats and frauds, or even thefts, which, as the experience of ages has shown, are likely to attend the itinerent and irresponsible peddling from place to place and from door to door”. (Emert v Missouri, 156 US 296, 311.) This court finds that there is no ambiguity in the Greenburgh Town Code and it is a valid exercise of police power.
CPL 100.40 (subd 1), relating to local criminal court accusatory instruments states as follows:
"(a) It substantially conforms to the requirements prescribed in section 100.15
"(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
"(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.”
The factual portion of the information alleges that the defendants were exchanging lollipops for moneys for the benefit of the Unification Church without first having obtained a license to do so. This is alleged upon direct knowledge of the complainant, and if true, establishes each and every element of the violation within the definition of the Greenburgh Town Code prohibiting the selling or bartering of goods, wares or merchandise by going from place to place on foot without first obtaining a license as required by the code. The information is sufficient on its face. (People v Bohoy, 61 Misc 2d 1096; Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 100.40.)
Defendants also attack the statute as being vague in that a determination is required by some functionary that the solicitation is made for a bona fide charitable, religious or political organization. They claim that the town code fails to have any definition of religion and contains no definitions or criteria or standards for a person to determine whether the religious organization for which he seeks to solicit funds is bona fide or
On the other hand the free exercise clause does not proscribe governmental regulation of overt acts prompted by religious beliefs or principles. "[E]ven when the action is in accord with one’s religious convictions [same] is not totally free from legislative restrictions” (Braunñeld v Brown, 366 US 599, 603). Religious belief cannot be accepted as justification for an overt act made criminal by the law of the land, and a statute proscribing bigamy does not contravene the religious scruples of those practicing the bigamist marriage. (Reynolds v United States, 98 US 145.) Religious impulse must give way to regulatory labor laws. (Prince v Massachusetts, 321 US 158.) Mann Act violations cannot be sanctioned on the grounds of religious doctrine. (Cleveland v United States, 329 US 14.) In New York, the Sunday Laws (prior to their being held unconstitutional in People v Abrams, 40 NY2d 277, supra) were held not to run afoul the free exercise clause merely because its effect was to penalize Orthodox Jewish sabbath observance. (People v Finkelstein, 38 Misc 2d 791, affd 41 Misc 2d 35, affd 14 NY2d 608, cert den 377 US 1006.)
There is a strong presumption that a statute duly enacted by a legislative body is constitutional and that in order to declare a law unconstitutional the invalidity of the law must be demonstrated beyond a reasonable doubt. (Matter of Van Berkel v Power, 16 NY2d 37, 40; People v Pagnotta, 25 NY2d 333, 337.) The defendants have not shown how the governmental regulation is proscribed by any constitutional provision and have failed to sustain their burden of proof of
This court takes judicial notice (People v Simari, 25 AD2d 485; see Richardson, Evidence [10th ed], § 30) that the Unification Church has instituted an action
The presumption that the Town of Greenburgh and the Village of Tarrytown officials would not do anything contrary to their official duties must be given effect by this court. (Matter of Marcellus, 165 NY 70; Matter of Whitman, 225 NY 1.) In Culp v City of New York (146 App Div 326, 328) the court stated: "What was done the statute authorized the commissioner to do. The presumption is that he did not usurp a function, but rather that he did his duty and kept within the power conferred by the statute. If it was done without the statute, let the defendant make proof of it.”
The defendants have not come forward in this court with any evidence to overcome the presumption of regularity of the village and town action and the presumption must continue until substantial evidence to the contrary appears. (People v Richetti, 302 NY 290.)
This court finds that the peddling and soliciting law of the Town of Greenburgh is not vague or indefinite within the meaning of the Fourteenth Amendment of the United States
For the foregoing reasons the motion of the defendants is in all respects denied. The cause is placed on the calendar of March 3, 1978 for all purposes.
. The complaint alleges as follows:
ACCUSATION
BE IT KNOWN THAT, by this information, Ptl. F.A. Bohlig, Jr. #237 as the Complainant herein, accuses Walter Wayne Wood, Eldridge Benjamin, Jr., Schon Wayne Straud the above named defendant, with having committed the offense of Peddlers Without License in violation of Section 21-3 Green-burgh Town Code Subdivision _ of the - Law of the State of
New York, a Class A Misdemeanor
Count One: License Required For Peddlers,
Town of Greenburgh Code Section 21-3.
Count Two: Class A Misdemeanor.
FACTS
THAT on the 11 day of June, 1977, at 1:20PM o’clock in the Afternoon of said day at Dalewood Shopping Center, North Central Ave., Hartsdale in the Town of Greenburgh, the defendants did knowingly and unlawfully engage in the business of peddlering within the Town of Greenburgh without having first duly obtained and having in force a license therefor as herein provided in said section.
TO WIT:
Said defendants at the above time, place and date did solicit by means of giving out lollie pops and asking for money for the Unification Church located at 723 South Broadway, Tarrytown, N.Y.
All of the above in violation of said statute made and provided for. The above allegations of fact are made by the Complainant herein on direct knowledge-
WHEREFORE, Complainant prays that a warrant be issued for the arrest of the
said---------
Ptl. F.A. Bohlig, Jr. #237 Complainant
Subscribed and sworn to before me this 11 day of June 1977
Title_
. Section 21-1 of the Greenburgh Town Code provides as follows:
"21-1. Title; application of provisions.
"This local law shall be known and may be cited as the 'Peddling and Soliciting
. Section 21-3 of the Greenburgh Town Code provides as follows:
"21-3. License required for peddlers.
"It shall be unlawful for any person to engage in the business of peddler as defined in § 21-2 of this local law within that portion of the Town of Greenburgh which lies outside the limits of any incorporated village situated therein without having first duly obtained and having in force a license therefor as herein provided.
. Section 21-2 of the Greenburgh Town Code provides in part as follows:
"21-2. Definitions.
"For the purpose of this local law, certain words used herein are defined as follows: * * *
"peddler — Any person, who in any public street or public place, or by going from house to house or from place of business to place of business, on foot or from any vehicle, sells or barters, or offers for sale or barter, or carries or displays for sale or barter, any goods, wares or merchandise.”
. Section 21-6 of the Greenburgh Town Code provides in part as follows:
"21-6. Exemptions.
"Nothing in this local law shall be deemed to apply to any of the following * * *
"B. Any person soliciting or collecting for any bona fide charitable, religious or political organization; provided, however, that such organization shall have otherwise been certified or otherwise been duly qualified as required by law or by any competent governmental body or agency and met the requirements therefor of the Town of Greenburgh.”
. CPL 100.15, in pertinent part, states as follows:
"1. ** * * Each instrument must contain an accusatory part and a factual part * * *
"2. The accusatory part of each such instrument must designate the offense or offenders charged * * *
"3. The factual part of the such instrument must contain a statement of the complainant alleging facts of an evidentary character supporting or tending to support the charges * * * Nothing contained in this section, however, limits or affects the requirement prescribed in subdivision one of section 100.40, that in order for an information or account thereof to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations of such information and/or any supporting deposition”.
. The Holy Spirit Association for the Unification of World Christianity, Inc., plaintiff, v The Village of Tarrytown, The Town of Greenburgh, The Board of Village Assessors of the Village of Tarrytown and the Assessor of the Town of Greenburgh, defendants, pending in the Supreme Court of the State of New York, County of Westchester.