People v. Weinkselbaum

PATRICK J. BARTON, J. In this criminal action, the defendant is charged with two counts of violating Babylon Town Code §§ 213-398 and 213-397, respectively. The defendant now moves to dismiss both values and to promote traffic safety by avoiding visual distractions, physical obstructions and mistakes or confusion with authorized traffic signs. In Metromedia, Inc. v City of San Diego (453 US 490), the Court stated that government may properly limit the noncommunicative qualities of signs to promote the legitimate government aims of aesthetics and traffic safety. These time, place and manner restrictions on speech must not be based upon the content of the speech. (See, Heffron v International Socy. for Krishna Consciousness, 452 US 640.) The statutes must be narrowly tailored, so that the predominant effect is to limit the secondary results of the speech. (See, Matter of Town of Islip v Caviglia, 73 NY2d 544; Clark v Community for Creative Non-Violence, 468 US 288.) After considering these criteria, this court finds that the defendant has not rebutted the strong presumption of constitutionality. The zoning ordinances contained in chapter 213, article XXXIII, specifically section 213-397, are narrowly tailored without regard to content, and accomplish legitimate governmental purposes. Accordingly, this motion by defendant to dismiss count 1, violating Babylon Town Code § 213-198, based upon the insufficiency of the information is granted. (See, CPL 170.35 [1] [a].) Motion to dismiss count 2, violating Babylon Town Code § 213-197, based upon the ground that the statute defining the offense is unconstitutional is denied. (See, CPL 170.35 [1] [c].)