The People, Appellant,v.On Sight Mobile Opticians, Respondent.BriefN.Y.November 18, 2014To be Argued by: JONATHAN SINNREICH (Time Requested: 20 Minutes) APL-2013-00283 Sixth District Court, Suffolk County Indictment No. BRTO-787-11 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, – against – ON SIGHT MOBILE OPTICIANS, INC., Respondent. REPLY BRIEF FOR APPELLANT Of Counsel: JONATHAN SINNREICH TIMOTHY F. HILL SINNREICH, KOSAKOFF & MESSINA, LLP Attorneys for Appellant 267 Carleton Avenue, Suite 301 Central Islip, New York 11722 Tel.: (631) 650-1200 Fax: (631) 650-1207 Date Completed: May 13, 2014 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................ 1 ARGUMENT POINT I RESPONDENT’S BRIEF CONCEDES EACH ARGUMENT IN FAVOR OF REVERSAL ............................................................................................. 3 a. Section 57 A-11 is Constitutional ...................................................... 3 b. On Sight Undisputedly Violated Section 57 A-11 ............................ 3 c. On Sight Cannot Advance an Overbreadth Challenge Because it Has No Interest in the Noncommercial Speech of Others ................. 4 d. On Sight’s Constitutional Challenge Should Have Been Confined to the Code Provision, Section 57 A-11, it was Charged with Violating ............................................................................................ 8 e. The District Court Lacked Jurisdiction to Render a Declaratory Judgment ............................................................................................ 10 POINT II SECTION 57 A-11 STANDS ON ITS OWN ..................................................... 11 POINT III RESPONDENT FAILS TO ADVANCE ANY MEANINGFUL VAGUENESS CHALLENGE ............................................................................................... 13 POINT IV RESPONDENT’S NEW SUFFICIENCY ARGUMENT IS FRIVOLOUS .................. 14 CONCLUSION ................................................................................................. 15 ii TABLE OF AUTHORITIES Page(s) Cases: Action Outdoor Adver. JV, L.L.C. v. Town of Shalimar, 377 F. Supp. 2d 1178 (N.D. Fla. 2005) .................................................... 7-8 Babylon v. Conte, 61 Misc. 2d 626, 305 N.Y.S.2d 553 (N.Y. Sup. Ct. 1969) ................................................................................. 10 Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691 (1977) ........................................................................................................ 4, 5 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ............................................. 4 Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 100 S.Ct. 2343 (1980) ....................................................... 4 Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886 (9th Cir. 2007) .......................................................................................... 9 Green v. Glenbriar Co., 131 A.D.2d 363, 516 N.Y.S.2d 670 (1st Dep’t 1987) ........................................................................................ 10 Maverick Media Group, Inc. v. Hillsborough County, 528 F.3d 817 (11th Cir. 2008) ........................................................................................ 9 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118 (1984) ............................................................................. 3 Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882 (1981) ........................................................................................................ 5, 6, 7 National Advertising Co. v. Town of Babylon, 900 F.2d 551 (2d Cir. 1990) ........................................................................................... 5, 6, 7 People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48 (1920) cert. denied, 256 U.S. 702, 41 S. Ct. 624, 65 L. Ed. 1179 (1921) ........... 12 People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88 (2000) ......................... 14 iii People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97 (1972) ................... 3 People v. Nelson, 69 N.Y.2d 302, 514 N.Y.S.2d 197 (1987) ...................... 13-14 People v. Stuart, 100 N.Y.2d 412, 765 N.Y.S.2d 1 (2003) ......................... 13 People v. Washington, 156 A.D.2d 496, 548 N.Y.S.2d 771 (2d Dep’t 1989) ........................................................................................ 3 Syracuse Savings Bank v. DeWitt, 56 N.Y.2d 671, 451 N.Y.S.2d 713 (1982) ........................................................................................................ 1, 5, 6 Statutes: Brookhaven Town Code § 57 A-11 ............................................................. passim 1 PRELIMINARY STATEMENT The Respondent, On Sight Mobile Opticians, Inc. (“On Sight”), does not address and thus effectively concedes the central thrust of the Town’s argument before this Court—i.e., that On Sight was admittedly guilty of violating an unquestionably constitutional provision of the Town Code and cannot avoid liability for such undisputed violations by speculating about the constitutionality of other provisions of the Code, as applied to other parties not before the court. As noted in the Town’s opening brief, this Court’s holding in Syracuse Savings Bank v. DeWitt, 56 N.Y.2d 671, 451 N.Y.S.2d 713 (1982) entirely forecloses On Sight’s basis for challenging its convictions. Because On Sight admittedly possesses no interest whatsoever in any noncommercial speech that may be regulated by the Code, it cannot, under Syracuse Savings Bank, avoid liability for its admitted violation by pointing to perceived impacts on others (i.e., hypothetical noncommercial speakers). Tellingly, On Sight does not attempt to distinguish—indeed does not even cite or mention—Syracuse Savings Bank anywhere in its brief. By wholly ignoring and failing to address in any way this controlling authority, On Sight has effectively conceded the argument that is fully dispositive of this appeal. Similarly, On Sight offers no response to argument that it impermissibly attempts to avoid liability for its admitted violation of § 57 A-11 of the Town Code 2 by challenging, exclusively, the constitutionality of other provisions of the Code. On Sight never discusses, and thus concedes, the undisputedly constitutional nature of § 57 A-11, the lone provision it was charged with violating. Instead, On Sight merely repeats its wholly misplaced and irrelevant discussions of other sections of the Town Code, sections that it was not charged with violating and thus were never properly before the District Court in the first instance. Beyond this, On Sight offers an almost incomprehensible vagueness argument which, again, is made entirely without reference to Section 57 A-11 and, for the first time in this Court, an equally unavailing and baseless challenge to the sufficiency of the Informations that charged On Sight with its admitted code violations. On Sight was unquestionably guilty as charged with placing unlawful signage in the public rights-of-way in the Town of Brookhaven. The convictions of On Sight were erroneously vacated by Appellate Term and should be reinstated. 3 ARGUMENT POINT I RESPONDENT’S BRIEF CONCEDES EACH ARGUMENT IN FAVOR OF REVERSAL a. Section 57 A-11 is Constitutional On Sight does not dispute or in any way challenge the constitutionality of Section 57 A-11 of the Town Code, the only provision it was charged with violating. Said section is a content-neutral prohibition against the placement of signs on public property within the Town, the constitutionality of which has never been questioned or contested by On Sight. Indeed, On Sight offers no rebuttal to the Town’s argument that the Supreme Court’s holding in Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118 (1984) and this Court’s holding People v. Goodman, 31 N.Y.2d 262, 265, 338 N.Y.S.2d 97, 100 (1972) conclusively establish the constitutionality of Section 57 A-11. b. On Sight Undisputedly Violated Section 57 A-11 Having raised no constitutional challenge to the section of the Town Code it was charged with violating (either in the proceedings below or in the briefing before this Court), On Sight notably also does not dispute that it, in fact, committed the violations as charged. Indeed, On Sight pleaded guilty to and has at no time asserted innocence as a defense to the charges. See People v. Washington, 156 A.D.2d 496, 496, 548 N.Y.S.2d 771, 772 (2d Dep’t 1989). Moreover, On Sight 4 has now explicitly acknowledged that the “fact specific to [the subject convictions] are not in controversy.” See Resp. Br. at p.3. c. On Sight Cannot Advance an Overbreadth Challenge Because it Has No Interest in the Noncommercial Speech of Others The Town’s opening brief cited the Supreme Court’s explanation that “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court,” see Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973), and argued that such reasoning applied here to preclude the lone defense attempted by On Sight. On Sight has offered no response. On Sight acknowledges that this is a commercial speech case. See Resp. Br. at p. 6, citing Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 100 S.Ct. 2343 (1980)(four-prong test for commercial speech). Having done so, On Sight also does not contest that the overbreadth doctrine does not apply to commercial cases, does not challenge the well-established authorities cited in support of that position (see Bates v. State Bar of Arizona, 433 U.S. 350, 381, 97 S. Ct. 2691 (1977)), and does not make any attempt to distinguish those cases or suggest they do not apply to or control the matter at bar. On Sight’s motion to dismiss and appeal was necessarily premised and exclusively reliant upon the perceived effect of the Code not on itself but others (i.e., overbreadth). 5 However, because On Sight was engaged in purely commercial speech, the overbreadth doctrine does not apply and On Sight was not entitled to the expansive constitutional defense it asserted. See id. Moreover, and perhaps most critically, On Sight does not dispute that it does not possess any interest in any noncommercial speech that may be regulated by the by the Town Code (or any Chapter, section or provision thereof). The only signs at issue in this case are signs for On Sight Mobile Opticians, Inc.—undisputedly commercial signs that do no more than advertise On Sight’s own commercial business. This critical and admitted fact both: i) places this case with the controlling authority of this Court’s holding in Syracuse Savings Bank v. DeWitt, 56 N.Y.2d 671, 451 N.Y.S.2d 713 (1982); and ii) distinguishes On Sight from the civil declaratory judgment plaintiffs in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882 (1981) and National Advertising Co. v. Town of Babylon, 900 F.2d 551 (2d Cir. 1990). As this Court held in Syracuse Savings, those with “no direct interest in noncommercial speech and no commercial interest in others who themselves have such an interest” cannot advance an overbreadth challenge based upon purported effects on noncommercial speech. See Syracuse Savings Bank, 56 N.Y.2d at 673, 451 N.Y.S.2d at 714. Here, the sole argument offered by On Sight in its motion to dismiss the accusatory instruments herein was limited exclusively to the purported 6 effects of other sections of the Code on the noncommercial speech of others not before the Court. Thus, even leaving aside for the moment the fact that On Sight fails to address the only section of the Code it was charged with violating, On Sight has never claimed, and there is no dispute that it fully lacks, any “direct interest in noncommercial speech.” Likewise, there is no claim that On Sight has a commercial interest in the noncommercial speech of others. Accordingly, under Syracuse Savings, On Sight cannot defend the charges against it by identifying some concern for the Code’s treatment of noncommercial speech. As noted above, it is exceedingly telling that On Sight has not cited or mentioned, let alone distinguished, Syracuse Savings from the matter at bar. The holding therein is fully dispositive of this appeal, and On Sight’s response to same is seemingly to pretend it does not exist. Furthermore, On Sight’s concession that it has no interest in the noncommercial speech of others further confirms the Town’s basis for distinguishing Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882 (1981) and National Advertising Co. v. Town of Babylon, 900 F.2d 551 (2d Cir. 1990). Both Metromedia and National Advertising were civil actions brought by commercial plaintiffs seeking a declaratory judgment; a legal context significantly different from the instant code enforcement proceedings in which On Sight was charged as a defendant with violating a specific section of the 7 Brookhaven Code. Critical to the ultimate holdings in both of those cases was the fact that the civil plaintiffs therein were found to possess a commercial interest in the noncommercial speech of others. See Metromedia, 453 U.S. at 504, footnote 11, 101 S. Ct. at 2890; see National Advertising, 900 F.2d at 555. On Sight, by contrast and as conceded by its brief, does not have a “commercial interest” in the noncommercial speech of others. It does not sell advertising space and has no connection whatsoever to any noncommercial speech; it merely posts signs advertising its own commercial business. Accordingly, Metromedia and National Advertising do not support the constitutional argument conveniently (but unavailingly) seized upon by On Sight, an entity with admittedly no interest in noncommercial speech. It should also be noted that this Court is not bound, in any case, by Metromedia and National Advertising, and their progeny. The latter is a Second Circuit opinion, and the former, while coming from the United States Supreme Court, is a mere plurality opinion—and, indeed, a significantly fractured and much questioned one at that. Justice Rehnquist’s dissent lamented, as several courts have since recognized as prophetic, that it was “a genuine misfortune to have the Court’s treatment of the subject be a virtual Tower of Babel, from which no definitive principles can be clearly drawn.” See Metromedia, 453 U.S. at 569 (Rehnquist, J., dissenting); see also Action Outdoor Adver. JV, L.L.C. v. Town of 8 Shalimar, 377 F. Supp. 2d 1178 (N.D. Fla. 2005). In the absence of a majority opinion of the United States Supreme Court directly on point, and particularly in light of the disarray of federal law in this area, this Court may look at and consider these important issues afresh. It is respectfully submitted that the instant case arising out of the admitted littering of public roadways with commercial advertisements—the regulation of which is unquestionably constitutional—fails to establish a context requiring this Court to yield to a confused body of federal law, unnecessarily reach a constitutional issue, and throw out a valid conviction in furtherance of municipal powers guaranteed to the Town by the state constitution. d. On Sight’s Constitutional Challenge Should Have Been Confined to the Code Provision, Section 57 A-11, it was Charged with Violating On Sight likewise has offered no response to the argument that its purported constitutional defense fails to address the only section of the Code it was charged with violating (§ 57 A-11) and focuses instead exclusively on sections On Sight was not charged with violating. Indeed, both Point I and Point II of the Respondent’s Brief literally open with the line “Relevant portions of the Code are as follows” (emphasis added), followed by the verbatim block quotation of several provisions of the Town Code with the alarming and conspicuous exception and exclusion of Section 57 A-11—the only section On Sight was charged with violating. Somehow, On Sight contends that Section 57 A-11 is not relevant in the 9 exceedingly narrow context of a code enforcement proceeding based exclusively upon the Respondent’s admitted violation of that very section. As noted in the Town’s opening brief, a party “may challenge only those provisions of the ordinance under which it has suffered an injury in fact” and “may not challenge the entire ordinance on its face because it has suffered no injury in fact as to any other provisions.” See Maverick Media Group, Inc. v. Hillsborough County, 528 F.3d 817, 823 (11th Cir. 2008); Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 891 (9th Cir. 2007). A party does not have “carte blanche to challenge an entire ordinance merely because some part of the ordinance – to which [that party] is not subject – might be unconstitutional.” See Maverick Media at 822. “The [overbreadth] doctrine merely permits the plaintiff to whom a provision of a statue is constitutionally applied to assert that the same provision might be unconstitutionally applied to third parties not before the court.” Id. In direct contravention of these principles, On Sight admittedly fails to assert that the same provision that it was convicted of violating, Section 57 A-11, might be unconstitutionally applied to others, but argues instead that other provisions might be unconstitutionally applied to other parties. As the foregoing authorities resoundingly establish, the argument fails. 10 e. The District Court Lacked Jurisdiction to Render a Declaratory Judgment On Sight has not responded to the argument, or authorities cited in support thereof, that the District Court lacked jurisdiction to address the constitutional argument On Sight asserted in its motion to dismiss. The Suffolk County District Court lacks jurisdiction to render a declaratory judgment; yet that is the very relief sought by On Sight’s motion to dismiss the accusatory instruments. Notwithstanding that this matter has now reached our highest court, the limited jurisdiction of the trial court where the Respondent pleaded guilty and that heard and disposed of the motion now under review cannot be ignored. See Green v. Glenbriar Co., 131 A.D.2d 363, 364, 516 N.Y.S.2d 670, 671 (1st Dep’t 1987); Babylon v. Conte, 61 Misc. 2d 626, 628, 305 N.Y.S.2d 553, 554 (N.Y. Sup. Ct. 1969). Indeed, although the District Court could entertain an application to review the constitutionality of a particular provision that a defendant in its court was charged with violating, it lacks jurisdiction to review and declare an entire statutory chapter unconstitutional. See People v. Sunrise Outdoor Advertising, Inc., (Unpublished) (Sixth District Court, Suffolk County, Bergson, J. July 17, 2008). Here again, On Sight’s brief is silent and offers no response whatsoever. 11 POINT II SECTION 57 A-11 STANDS ON ITS OWN On Sight contends that the Town is asking this Court to legislate and surgically remove the portion of the Town Code to which the Respondent pleaded guilty. That is, of course, not an accurate summary of the Town’s position, which we trust is adequately set forth in the opening brief. Indeed, the Town is not asking the Court to legislate, re-write or remove Section 57 A-11—to the precise contrary, the Town asks this Court to uphold convictions based upon the admitted violations of this wholly and undisputedly constitutional provision that should be preserved and remain in place—a provision which requires no judicial tinkering whatsoever in order to fully pass constitutional muster. On Sight’s contention that Section 57 A-11 is inextricably interwoven with other sections of the Town Code is likewise unavailing. The suggestion that each section “relies upon, flows through and/or supplements another section” is simply not true. Indeed, in the case of Section 57 A-11, it is demonstrably false. Section 57 A-11 imposes a singular prohibition based upon the public ownership of the Town rights-of-way, and exists independent of all other substantive sections which regulate signage on private property. On Sight’s attempt to identify some conflict between said section and Section 57 A-10 is disingenuous. Section 57 A-10’s regulation of political signs does not “trump” the interests advanced by Section 57 12 A-11’s prohibition of signs on public property. As Respondent is aware, Section 57 A-10 refers exclusively to privately owned property and therefore has no overlap with Section 57 A-10. Also contrary to On Sight’s contentions, the sections are consistent in their interest in promoting traffic safety. Most notably, On Sight fails to acknowledge the most significant feature of Section 57 A-11 with regard to severability—its own separately stated “Declaration of Policy.” This expressly stated legislative intent established that the Town Board (its legislature) would desire this provision to exist even in the absence of other sections of the Town Code “The question is in every case whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the valid part exscinded, or rejected altogether.” People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48 (1920)(Cardozo, J.) (“Our right to destroy is bounded by the limits of necessity. Our duty is to save unless in saving we pervert.”), cert. denied, 256 U.S. 702, 41 S. Ct. 624, 65 L. Ed. 1179 (1921). Id. at 48. 13 POINT III RESPONDENT FAILS TO ADVANCE ANY MEANINGFUL VAGUENESS CHALLENGE Respondent’s vagueness argument (Resp. Br. Point II) is utterly nonsensical. Respondent inexplicably focuses its vagueness arguments on a few selected phrases from Section 57 A-1 of the Town Code, phrases that do not even include prohibitionary language that might be susceptible to vagueness analysis. In any case, On Sight is once again way off base as this case exclusively concerns charges that On Sight violated Section 57 A-11 by placing signs on public property. If On Sight had a vagueness defense, it would have to be some articulation that the prohibition against placing signs on public property was somehow unclear or incapable of enforcement. On Sight, however, has not made any such argument. Indeed, On Sight has admitted the simple and straightforward facts establishing the violations and has never argued that the prohibition in Section 57 A-11 is unclear or vague. Finally, because Section 57 A-11 is not impermissibly vague as applied to On Sight (this is not in dispute); the facial validity of the section is confirmed without the need of any further analysis. See People v. Stuart, 100 N.Y.2d 412, 422-23, 765 N.Y.S.2d 1, 9-10 (2003) (“if a defendant makes an as-applied vagueness challenge and the court repudiates it, the facial validity of the statute is confirmed”) citing People v. Nelson, 69 N.Y.2d 302, 308, 514 N.Y.S.2d 197, 199 14 (1987) (“the court will not strain to imagine marginal situations in which the application of the statute is not so clear”). POINT IV RESPONDENT’S NEW SUFFICIENCY ARGUMENT IS FRIVOLOUS On Sight now asserts, for the very first time, the completely frivolous argument that the Informations charging On Sight with violations of the Town Code were facially insufficient. This issue has not been preserved for appeal (On Sight did not raise this issue either in its motion to dismiss or in its appeal to Appellate Term). In any case, the superseding Informations charging On Sight with violating Section 57 A-11 (see A-38 – A-41) do not suffer from any such infirmity. In each instance, said Informations provide precise details as to the public location of the signs and far exceed the minimal standards for same. See People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 91 (2000) (“So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.”) 15 CONCLUSION Based upon the foregoing, it is respectfully submitted that decision and order of the Appellate Term should be reversed. Dated: Central Islip, New York May 13, 2014 Respectfully submitted, SINNREICH KOSAKOFF & MESSINA LLP By: _______________________ Jonathan Sinnreich Timothy F. Hill Attorneys for Appellant 267 Carleton Avenue, Suite 301 Central Islip, New York 11722 (631) 650-1200