People v. Saul

Legal Aid Society, New York City (Justine Luongo of counsel), for defendant. Robert M. Morgenthau, District Attorney, New York City (Dwayne Nash of counsel), for plaintiff.

OPINION OF THE COURT

GERALD HARRIS, J. The defendant, Lawrence Saul, is charged with selling, on the street, playing cards without a general vendor's license in violation of Administrative Code of the City of New York § 20-453. He moves to dismiss the complaint on two grounds, that the facts alleged are insufficient to make out the crime charged and that the United States and New York State Constitutions prohibit the State from requiring a license to sell art. The defendant's motion alleges that the playing cards bear the photographic images of military and political figures associated with the war in Iraq and, therefore, constitute "collectible war and military art created to memorialize Operation Iraqi Freedom and the Heroes of War." Sellers of artwork, the defendant argues, are exempted from the licensing requirement because artwork communicates ideas and, as such, is entitled to the protections of the First Amendment and the free speech provisions of New York State Constitution, article I, § 8. The first ground cited as requiring dismissal is without merit. Both the factual allegations of the complaint and the supporting deposition establish, if true, that the defendant was engaged in offering for sale more than 10 decks of playing cards displayed on a table behind which defendant stood for five minutes during which time he was seen exchanging the merchandise with one customer in return for currency. Defendant was not displaying the required license nor could he produce one when asked. These factual allegations provide an adequate basis for the court to infer, for pleading purposes, that defendant was committing the crime of acting as an unlicensed general vendor. (People v Gonzalez, 184 Misc 2d 262 [App Term, 1st Dept 2000]; People v Chen Ye, 179 Misc 2d 592 [Crim Ct, NY County 1999]; People v Montanez, 177 Misc 2d 506 [Crim Ct, NY County 1998].) Defendant's second ground for dismissal requires a fuller analysis. Section 20-453 of the Administrative Code provides, in relevant part:

"It shall be unlawful for any individual to act as a general vendor without having first obtained a license ... except that it shall be lawful for a general vendor who hawks, peddles, sells or offers to sell, at retail, only newspapers, periodicals, books, pamphlets or other similar written matter ... to vend such without obtaining a license therefor."

To the extent that the statute may place restrictions on the exercise of First Amendment rights, in that it regulates and licenses the use of public forums, it must further an important or substantial governmental interest, be narrowly drawn as to time, place and manner, be content-neutral and not cut off alternative channels of communication. (Schad v Borough of Mount Ephraim, 452 US 61 [1981]; Consolidated Edison Co. v Public Serv. Commn., 447 US 530 [1980]; Virginia State Bd. of Pharm. v Virginia Citizens Consumer Council, 425 US 748 [1976]; United States v O'Brien, 391 US 367 [1968].) The court must now determine whether the application of the licensing requirement to this defendant, under the factual circumstances alleged, is violative of his constitutional rights. More specifically, if the playing cards sold by defendant are a form of written or visual expression, they are protected by the First Amendment and the general vendor's licensing scheme, as applied to such expression, has been found invalid. (Bery v City of New York, 97 F3d 689 [2d Cir 1996], cert denied 520 US 1251 [1997]; cf. Lederman v Giuliani, 1998 WL 186753, 1998 US Dist LEXIS 5468 [SD NY 1998].) Courts in New York have wrestled with the issue of whether visual art, as defendant so describes his stock, has First Amendment protection, and whether the provisions of Administrative Code § 20-453, as applied to artists, interfere with their constitutional rights. (See, People v Bissinger, 163 Misc 2d 667 [Crim Ct, NY County 1994] [street presentation coupled with photographic memorialization of the production protected].) Other issues addressed have included whether the exemption for sellers of books and other written material also applies to sellers of visual or nonverbal art and, if not, whether such distinction is violative of equal protection and whether Administrative Code § 20-453 is a narrowly drawn restriction which allows for alternative means of expression and, thus, not overly-restrictive Code § 20-453 without offense to the Federal or State Constitution. In most cases, the cards bear the photographic images of Iraqi military or political persons along with their names, titles or rank. In a few instances, only a black silhouette is shown with a name and title. The cards, in and of themselves, are not art. Nor do they depict works of art. There is nothing artistically noteworthy about the photographic images on the cards, nor do they constitute the seller's own artistic endeavor. In sum, the cards do not qualify as art. Applying the guideposts set out in Bery, the court has also assessed whether the visual images on the cards constitute a form of nonverbal expression which, like books, pamphlets or other writings, effectively communicate ideas, concepts or emotions. There is nothing about these cards which, reasonably interpreted, communicates ideas, opinions, emotions or a point of view. They do not glorify or condemn the war, demonize the characters, honor the coalition forces, hail war heroes or memorialize the fallen. The fact that each card contains a few words does not make it the equivalent of a book, pamphlet or other form of protected written expression. The words have no substance and serve only to identify the picture. Thus, these cards are distinguished from an ordinary deck of cards only by their manner of decoration. They are nothing more than the means to play a game and/or, at most a "collectible,"

the term used by defendant himself, although he appends the further, undeserved description "war and military art created to memorialize Operation Iraqi Freedom and the Heroes of War" (defendant's brief at 7). Collectibles are readily distinguishable from art and, as mere merchandise, would not be entitled to constitutional protection. As collectibles, the cards may be likened to miniatures of the Statue of Liberty, which may be associated with the ideals of freedom and opportunity, but which are sold principally to tourists as mementos of a visit to New York and not as expressions of visual art. (See, Comedy III Prods., Inc. v Gary Saderup, Inc., 80 Cal Rptr 2d 464 [1998], review granted, op superseded 83 Cal Rptr 2d 533, 973 P2d 512 [1999], affd 25 Cal 4th 387, 21 P3d 797 [2001], cert denied 534 US 1078 [2002] [reproductions of an image made to be sold for profit, do not per se constitute speech]; People v Shapiro, 139 Misc 2d 344 [Crim Ct, NY County 1988] [calendars and datebooks not protected form of written expression].) Similarly, sweaters bearing an American flag design may be evocative of patriotism but, when sold as items of fashion, do not acquire artistic value. (See, Al-Almin v City of New York, 979 F Supp 168 [ED NY 1997] [sale of perfumes and oils not sufficiently expressive to warrant First Amendment protection].) The court finds that the cards cannot reasonably be characterized as art or artistic expression and are not entitled to constitutional protection. Accordingly, the defendant, in the context of this case, is neither an artist nor engaged in the communication of artistic or written expression and the regulation of his selling activities, on the sidewalks of the City, does not infringe his constitutional rights. His motion to dismiss the complaint is denied. Other Branches of Defendant's Motion The defendant's moving papers do not contain specific denials of the factual allegations accusing him of selling the cards without a license. Therefore, there are no disputed factual issues which require a hearing as to probable cause for his arrest and defendant's Dunaway motion is denied. (People v Mendoza, 82 NY2d 415 [1993]; People v Omaro, 201 AD2d 324 [1st Dept 1994].) Defendant's Mapp motion, to suppress the physical evidence, is also denied without a hearing. There is no dispute that the cards were in plain sight on a public street and, thus, defendant can claim no expectation of privacy which was violated by their seizure. (People v Sutton, 91 AD2d 522 [1st Dept 1982] [mem]; People v DeLaCruz, 242 AD2d 410 [1st Dept 1997].) Furthermore, based upon the court's finding of probable cause it is apparent that the seizure of the cards was incident to a lawful arrest. (People v De Santis, 46 NY2d 82 [1978]; People v Green, 42 NY2d 1023 [1977]; People v Nieves, 36 NY2d 396 [1975].) The use of prior convictions or bad acts to cross-examine the defendant is referred to the trial court for resolution. [1] A general vendor is defined as "[a] person who hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services, including newspapers, periodicals, books, pamphlets or other similar written material in a public space. (Administrative Code § 20-452 [b].) [2] "Collectible" is defined by Webster's New World Dictionary of the American Language (2d college ed), as "suitable for collecting, as by a hobbyist; any of a class of old things, but not antiques, that people collect as a hobby; a thing of no great intrinsic value."