Opinion
September 18, 1978
Appeal from the City Court of the City of Long Beach, Nassau County, MACKSTON, J.
Robert Harris for Marvin Grandy, defendant.
Jay Davis for Alphonza White, defendant.
Denis Dillon, District Attorney (Lawrence Dugan of counsel), for plaintiff.
Defendants, each charged with disorderly conduct, violations of subdivisions 2 and 3 of section 240.20 Penal of the Penal Law, now move for dismissal upon the ground that those sections are unconstitutionally vague.
Subdivisions 2 and 3 of section 240.20 Penal of the Penal Law provide as follows:
"A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
* * *
"2. He makes unreasonable noise; or
"3. In a public place, he uses abusive or obscene language, or makes an obscene gesture".
There is a strong presumption that a statute, duly enacted is valid. (People v Pagnotta, 25 N.Y.2d 333.) A court of first impression is not bound to set aside a law as unconstitutional unless that conclusion is inescapable (Incorporated Vil. of Lloyd Harbor v Town of Huntington, 143 N.Y.S.2d 797; People v Elkin, 196 Misc. 188) and demonstrated beyond a reasonable doubt by the one asserting it. (Matter of Van Berkel v Power, 16 N.Y.2d 37; McKinney's Cons Laws of NY, Book 1, Statutes, § 150.) This, defendant has failed to do.
As was stated in People v Berck ( 32 N.Y.2d 567, 569): "a penal law is void for vagueness when it `"`fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden * * *' * * * `It is the rule that for validity a criminal statute must be informative on its face * * * and so explicit that' all men subject to their penalties may know what acts it is their duty to avoid"'".
In interpreting penal statutes the words thereof are afforded their commonly accepted meaning. (People v Glubo, 5 N.Y.2d 461.)
In International Harvester Co. v Kentucky ( 234 U.S. 216, 223) Justice HOLMES stated: "We regard this decision as consistent with Nash v. United States, 229 U.S. 373, 377, in which it was held that a criminal law is not unconstitutional merely because it throws upon men the risk of rightly estimating a matter of degree * * * It goes no further than to recognize that, as with negligence, between the two extremes of the obviously illegal and the plainly lawful there is a gradual approach and that the complexity of life makes it impossible to draw a line in advance without an artificial simplification that would be unjust." (See, also, People v Lenti, 44 Misc.2d 118.)
That more precise language may have been used in drawing a statute does not render it unconstitutional. (United States v Petrillo, 332 U.S. 1.)
It is the court's belief that when reasonably viewed the subject sections are not ambiguous, and defendants have failed to establish the contrary beyond a reasonable doubt. Accordingly, the motions are denied. The matter is set down for conference September 27, 1978, at 9:30 A.M.