Opinion
2017SC013059
02-16-2018
The PEOPLE of the State of New York, Plaintiff, v. Charmain GRIFFITH, Defendant.
For the Defendant: Gideon Orion Oliver, Esq. For the People: No Appearance
For the Defendant: Gideon Orion Oliver, Esq.
For the People: No Appearance
Charlotte E. Davidson, J.The defendant, Charmain Griffith, is charged with Failure to Wear License While Vending (AC § 20–461[b] ). She moves for an order dismissing the accusatory instrument as facially insufficient pursuant to Criminal Procedure Law (CPL) 100.40, 150.50, 170.30 and 170.35 and in the alternative, seeks other relief. As a matter of office policy, the District Attorney of New York County has declined to appear in matters such as this one that are brought by universal summons. The Court directed the defendant to serve her motion papers upon the Legal Bureau of the New York Police Department, and counsel avers that he has done so. The Legal Bureau has not submitted a response nor has it indicated any interest in appearing on behalf of the People.
For the reasons stated below the defendant's motion for an order dismissing the accusatory instrument as facially insufficient is granted.
The defendant contends that the summons is facially insufficient because ticket selling, as is alleged here, is not unlicensed general vending and therefore AC § 20–461(b) is not applicable to the defendant's conduct. The Court agrees.
The factual allegations as written in the summons are as follows:
At TPO [12:50 p.m. on October 20, 2017 in front of 668 Eighth Avenue in the County and State of New York], A/O observed Defdt [sic] selling Top View Bus tickets without displaying a license to do so anywhere on her person, in public view.
AC § 20–461(b) provides in relevant part that a "general vendor" is required to carry his or her license on his or her person and that the license "be exhibited upon demand to any police officer ..." AC § 20–452 (b) in relevant part defines "general vendor" 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 matter in a public space.
The Supreme Court, Appellate Division, First Department clarified the reach of the general vendor provisions of the Administrative Code in Matter of New York Skyline, Inc. v. City of New York., 94 A.D.3d 23, 939 N.Y.S.2d 42 (App. Div., 1st Dept.), lv to appeal denied 19 N.Y.3d 809, 2012 WL 3743746 (2012). In Skyline , the Appellate Division reversed the decision of the lower court and held that ticket sellers for the Skyline corporation's virtual helicopter rides were not general vendors as defined in Administrative Code § 20–252. The Skyline court held that the tickets being offered were not for goods or services but for a license to participate in an entertainment. The Appellate Division reasoned that if the City Council had intended to include entertainment in the statute it would have done so explicitly ( 94 App. Div. 3d at 27–28, 939 N.Y.S.2d 42 ).
In the wake of the Skyline decision, the City Council took action to regulate street sales of tickets to entertainment (see AC § 20–550 et seq.). In its report on the proposed legislation, the Council's Committee on Consumer Affairs explicitly cited the Skyline court's holding that ticket sellers on the street were not require to obtain and exhibit a general vendor's license. The report also detailed the need for the regulations, citing reports of aggressive solicitation culminating in violence and fraud (Committee Report on Proposed Int. No. 1149–A, June 20, 2016). The City Council enacted the new legislation—Administrative Code §§ 20–550 through 20–559—on June 28, 2016.
AC § 20–551 prohibits the sale of tickets in a public space without a license. Such licenses are to be issued by the Commissioner of Consumer Affairs (AC § 20–551[d] ). AC § 20–550 defines a "ticket" as "anything evidence of, or anything purported to be evidence of, the right to enter or participate in any place of entertainment, mode of transportation, or guided tour." The same statute defines "mode of transportation" as "every device in, upon, or by which any person or property is or may be transported or drawn upon a street, highway, body of water, or through the air, including motorized and non-motorized devices." AC §§ 20–550 et seq. provides no amendment of the regulatory scheme for general vendors (AC §§ 20–452 et seq.) to include ticket sellers.
Given Skyline 's holding that the general vendor statutes to not cover ticket selling for forms of entertainment and the new legislation's (AC§§ 20–550 et seq.) regulation of street ticket selling for entertainment including modes of transportation and guided tours, this Court concludes in the instant matter that sale of tickets to Top View Buses is not covered by AC § 20–461(b) as charged and that AC § 20–554 is the statute applicable to the facts alleged. Accordingly, as the factual allegations of the summons do not make out the offense of Failure to Wear License While Vending under AC § 20–461(b), the accusatory instrument is facially insufficient and thus jurisdictionally defective and must be and is hereby dismissed.
Because of the Court's decision, the Court need not address the defendant's alternative theory that the accusatory instrument fails to provide reasonable cause to believe that she engaged in the sale of tickets.
The foregoing shall constitute the opinion, decision, and order of this court.