Opinion
22514
February 4, 2002.
APPEAL from a judgment of the Criminal Court of the City of New York, New York County (Ellen M. Coin, J., on dismissal motion; James P. Sullivan, J., at trial and sentence), rendered October 30, 2000, convicting defendant, after a nonjury trial, of violating New York City Traffic Rules (34 RCNY) § 4-12 (j) (1).
Coudert Brothers, New York City (Richard A. De Palma, Peter D. Sharp and Ellen Ratliff of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer and David M. Cohn of counsel), for respondent.
PRESENT: HON. STANLEY PARNESS, P.J., HON. WILLIAM J. DAVIS, HON. LUCINDO SUAREZ, Justices.
Judgment of conviction rendered October 30, 2000 (Ellen M. Coin, J. on dismissal motion; James P. Sullivan, J. at trial and sentence) affirmed.
We agree, essentially for reasons stated in the decision of Ellen M. Coin, J. at Criminal Court ( 185 Misc.2d 734, 736-740), that New York City Traffic Rule (34 RCNY) § 4-12(j) is not violative of the First Amendment. The traffic rule, which prohibits certain classes of vehicles from displaying commercial advertising other than "[a]dvertising notices relating to the business for which a vehicle is used", is narrowly drawn to further the stated and substantial governmental interests of improving traffic safety and alleviating traffic congestion, and thus remains within First Amendment bounds (see, Central Hudson Gas Elec. Corp. v. Public Serv. Commn. of New York, 447 U.S. 557). The language used by the Court of Appeals from the Eleventh Circuit in upholding a parallel Florida ordinance restricting vehicular commercial advertising is equally applicable here:
"In this case, [New York City] has not attempted to prohibit any advertising that offers no threat to traffic safety or aesthetic improvement: each advertising vehicle . . . contributes to the problem. The ordinance does not completely suppress information, either. Businesses are free to convey information to the consuming public in [the city] through a variety of means, including buses and taxis. They may also use their own vehicles to advertise so long as the vehicles are primarily used for some other purpose. In short, the city has partially regulated the manner in which information may be conveyed without speaking to the content of that information." (Supersign of Boca Raton, Inc. v. City of Fort Lauderdale, 766 F.2d 1528, 1532.)
Similarly unavailing is defendant's assertion that traffic rule § 4-12(j) is unconstitutionally vague. The rule provides sufficient warning of the conduct proscribed — vehicular "commercial advertising" — and is not written in a manner that encourages arbitrary or discriminatory enforcement (see, Grayned v. City of Rockford, 408 U.S. 104, 108-109; United States v. Harriss, 347 U.S. 612, 617; People v. Nelson, 69 N.Y.2d 302, 307; People v. Smith, 44 N.Y.2d 613, 618). That the rule does not expressly define the term "commercial" does not render it void for vagueness, since the line between commercial speech and non-commercial speech is clearly demarcated by a quarter century of United States Supreme Court precedent (see, e.g., Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762;City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 422;Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S Ct 2404, 2421). "Although an occasional marginal case might arise raising the question of whether on the particular facts the definition of commercial speech would be correct, such an infrequent possibility should not in itself justify a generalized charge that the [rule] itself is vague, given the guidance afforded by court decisions in the area." (Children of the Rosary v. City of Phoenix, 154 F.3d 972, 983 [9th Cir], cert denied 526 U.S. 1131,quoted in Infinity Outdoor, Inc. v. City of New York, 165 F. Supp.2d 403, 424 [ED NY].) Shown to have owned and leased for hire a cargoless, four-foot wide truck or "moving billboard" transporting nothing else but a "big" advertisement for a job recruitment computer website unrelated to its own truck leasing business, defendant stands convicted on the basis of conduct that plainly falls within the ambit of the traffic rule here under scrutiny. Thus, "any element of vagueness in this [rule) has had no effect on this defendant and [it has] no standing to complain of it" (People v. Nelson, supra, 69 N.Y.2d, at 308).