Relates to when a person is guilty of loitering; repealer

The bill conforms other laws to the repeal of §240.35(3). The bill deletes references to § 240.35(3) through the repeal or amendment of provisions of the criminal procedure law, the penal law, the alcoholic beverage control law, the executive law, and the general business law. These provisions require violators of § 240.35(3) to be fingerprinted, include the violation in the definition of serious offense under firearm laws, and prohibit violators from being employed by a business with a license to traffic in alcoholic beverages, from being appointed a notary, and from obtaining a license to become a private investigator, bail enforcement agent, or watch, guard, or patrol agency.

The bill amends the definition of serious offense contained in Penal Law §265.00(17) twice, in sections two and three of the bill, because there was a technical error in chapter 635 of the laws of 1999. That chapter contained two sections each adding the same two phrases to the definition, but inserting the phrases in a different order.

Justification

The law maintains three subdivisions that different courts have found unconstitutional. The continued presence of these provisions in the Penal Law serves no useful purpose. It also creates the risk that police officers will be confused as to the current state of the law. Repealing these subdivisions will make the law clear.

Subdivision one was held unconstitutional in 1993 by the United States Court of Appeals for the Second Circuit in Loper v. New York City Police Department, 999 F.2d 699 (1993) (affirming District Court order enjoining NYPD from enforcing the law). The court held that the statute's blanket prohibition on begging in all public places violated the First Amendment of the United States Constitution. This case does not bind New York courts, but does serve as persuasive authority.

Subdivisions three and seven were held unconstitutional in two different criminal cases by the New York Court of Appeals in the 1980's. The court held subdivision three unconstitutional in People v. Uplinoer, 58 N.Y.2d 936 (1983) because its earlier decision in People v. Onofre, 51 N.Y.2d 476, had struck down the consensual sodomy statute, which it described as the "companion statute" to the loitering statute at issue in Uplinoer. Because the purpose of subdivision three was to punish conduct anticipatory to consensual sodomy, the court held that subdivision three was also unconstitutional. In 1988, the Court of Appeals held that subdivision seven was unconstitutionally vague under the Due Process clause of the federal and state constitutions. People v, Briaht, 71 N.Y.2d 376 (1988), The court found that the subdivision failed to give fair notice that the prohibited conduct was illegal, permitted arbitrary enforcement, and required a citizen to relinquish the 7.8341-B (2008).

Fiscal implications

None.

Effective date

This act shall take effect immediately.