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. 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: March 13, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................ ii PRELIMINARY STATEMENT .................................................................................... 1 PROCEEDINGS BELOW ........................................................................................... 3 APPLICABLE LAW .................................................................................................. 5 STATEMENT OF FACTS ......................................................................................... 6 ARGUMENT ........................................................................................................... 8 POINT I ................................................................................................................ 8 SECTION 57 A-11 IS CONSTITUTIONAL POINT II ............................................................................................................ 11 ANY QUERY AS TO THE CONSTITUTIONALITY OF OTHER SECTIONS OF THE TOWN CODE IS NO DEFENSE TO ON SIGHT’S VIOLATION OF SECTION 57A-11 OF THE TOWN CODE a. On Sight’s Constitutional Challenge Should Have Been Confined to the Code Provision, Section 57 A-11, it was Charged with Violating . ........................................................ 14 b. On Sight Cannot Advance an Overbreadth Challenge Because it Has No Interest in the Noncommercial Speech of Others. ....................................................................................... 16 POINT III ........................................................................................................... 20 SECTION 57 A-11 STANDS ON ITS OWN CONCLUSION ....................................................................................................... 23 ii TABLE OF AUTHORITIES Cases Page Abel v. Orangetown, 724 F.Supp. 232 (S.D.N.Y. November 3, 1989) ............................................. 9 Babylon v. Conte, 61 Misc. 2d 626, 305 N.Y.S.2d 553 (N.Y. Sup. Ct. 1969) ........................... 13 Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691 (1977) ............................................................. 11 Broadrick v Oklahoma, 413 U.S. 601, 93 S. Ct. 2908 (1973) ....................................................... 11, 20 Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612 (1976) ................................................................... 21 Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 52 S. Ct. 559 (1932) ............................................................... 21 Commissioner of Community Development v. Foster & Kleise, Division of Metromedia, Inc., 123 A.D.2d 495, 507 N.Y.S.2d 95 (4th Dep’t 1986) .................................... 12 Gary D. Peake Excavating v. Town Board of the Town of Hancock, 93 F.3d 68 (2d Cir. 1996) .............................................................................. 21 Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886 (9th Cir. 2007) ................................................................... 14, 15 Green v. Glenbriar Co., 131 A.D.2d 363, 516 N.Y.S.2d 670 (1st Dep’t 1987) ................................... 13 Islip v.Caviglia, 141 A.D.2d 148, 532 N.Y.S.2d 783 (2nd Dep't 1988) .................................. 22 iii Maverick Media Group, Inc. v. Hillsborough County, 528 F.3d 817 (11th Cir. 2008) ................................................................. 14, 15 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118 (1984) ......................................................... 8, 9 Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882 (1981) ........................................................... 18 National Advertising Co. v. Town of Babylon, 900 F.2d 551 (2d Cir. 1990) .................................................................... 18, 19 New York State Thruway Auth. v. Ashley Motor Court, Inc., 10 N.Y. 151, 218 N.Y.S.2d 640 (1961) ........................................................... 9 People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 62, (1920)(Cardozo, J.), cert. denied, 256 U.S. 702, 41 S. Ct. 624, 65 L. Ed. 1179 (1921) ............................................................................ 21 People v.Barton, 8 N.Y.3d 70, 828 N.Y.S.2d 260 (2006) ......................................................... 15 People v.D'Arcy, 79 Misc.2d 113, 359 N.Y.S.2d 453 (Allegany County Court 1974.) ............ 11 People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97 (1972) ................................................... 9, 10 People v. Sunrise Outdoor Advertising, Inc., (Unpublished) (Sixth District Court, Suffolk County, Bergson, J. July 17, 2008) .............................................................................................................. 16 Syracuse Savings Bank v. DeWitt, 56 N.Y.2d 671, 451 N.Y.S.2d 713 (1982) ..................................... 2, 12, 17, 20 Virginia v. Hicks, 539 U.S. 113, 123 S. Ct. 2191 (2003) ..................................................... 19, 20 iv Virginia State Bd. of Pharmacy v.Virginia Citizens Consumers Council, 425 U.S. 748, 96 S. Ct. 1817 (1976) ............................................................. 19 Statutory Law NY CONST. ART. IX, § 2(c)(6) ........................................................................ 3, 6, 10 Criminal Procedural Law § 460.20 ............................................................................ 4 Rochester City Code § 44-4(H) ............................................................................... 16 Town Code of the Town of Brookhaven, Section 57 A-11 ............................. passim 1 PRELIMINARY STATEMENT In May 2011, Respondent, On Sight Mobile Opticians, Inc. (“On Sight”) was charged with, and ultimately plead guilty to and was convicted of, placing five commercial advertising signs along the public roadways of the Town of Brookhaven, in violation of Section 57 A-11 of the Town Code. Section 57 A-11 is a straightforward prohibition on the placement of signs on public property within the Town, the constitutionality of which is not in question and has not been challenged by On Sight. In the absence of any basis to challenge to the specific law it was actually charged with violating, On Sight sought to defend itself by mounting a facial constitutional challenge to the entirety of the Brookhaven sign ordinance, based upon perceived constitutional infirmities in sections of the Code which are completely extraneous to the single, stand-alone provision On Sight was charged with violating. In effect, On Sight confused its defense in this criminal action with a civil declaratory judgment action, which could not be properly brought in the District Court. Regrettably, Appellate Term was equally confused about the limited scope of the issues properly before it, and dismissed the charges against On Sight based upon its broad finding that Section 57-A, as a whole, was facially unconstitutional. On this appeal, we respectfully ask this Court to correct this palpable error. 2 Without expressly saying so, it is clear that Respondent, and Appellate Term, based their misguided constitutional analysis on the so-called “overbreadth” doctrine. However, as the United States Supreme Court has held, the overbreadth doctrine does not apply to cases, such as this, involving commercial speech. More specifically, this Court’s holding in Syracuse Savings Bank v. DeWitt, 56 N.Y.2d 671, 451 N.Y.S.2d 713 (1982) entirely forecloses precisely the kind of overbreadth challenge attempted by the Respondent since there is no dispute that On Sight possesses no interest whatsoever in any noncommercial speech that may be regulated by the Code. Throughout the proceedings below, the Town consistently attempted to return the lower courts’ focus to On Sight’s specific violations of Section 57 A-11. The Town argued (against no resistance from On Sight) that said section is constitutional as its prohibition against placing signs on public property directly serves legitimate governmental purpose as set forth in the express legislative intent of Section 57 A-11 and, indeed, as expressly embodied in the New York State Constitution Section 57 A-11, properly viewed, is a stand-alone provision which has limited relationship to the other, purely regulatory provisions of the Town sign ordinance. Unlike the sections of Chapter 57 A challenged by On Sight, Section 57 A-11 has its own independent declaration of legislative purpose, grounded in 3 the Town’s constitutional right to manage and protect its own property. See NY CONST. ART. IX, § 2(c)(6). It is not intertwined with, dependent upon, or related to any other provisions of Chapter 57 A, which primarily concern size, content, illumination and durational limitations on permitted signs located on private property. Even were other provisions of the Code marred by some constitutional defect, there can be no question that the Town Board would wish for the prohibition against the placement of any private signs on public property to stand. Accordingly, the judgment below should be reversed. PROCEEDINGS BELOW On May 3, 2011, the Town of Brookhaven, by Walter Maresco, a Town Investigator, filed five “informations” charging On Sight, in each case, with a single count of violating Section 57 A-11 of the Town Code of the Town of Brookhaven. (A-32 - A-36) These informations were replaced by five superseding informations filed on July 5, 2011. (A-37 - A-41) By motion dated June 20, 2011, On Sight sought an order “declaring Chapter 57-A of the Brookhaven Town Code unconstitutional” and sought dismissal of the charges against On Sight. (A-42) The People (Town of Brookhaven) opposed the motion, specifically arguing, inter alia, that Section 57 A-11 (the provision that On Sight was charged with 4 violating) is constitutional, that said Section advances its own specifically and separately stated purpose, and that, to the extent On Sight was challenging other provisions of the Code, such unrelated sections were severable. (A-52 - A-68). The Sixth District Court, Suffolk County, (Ukeiley, J.) rejected On Sight’s constitutional challenge and denied On Sight’s motion to dismiss the five superseding informations by Order dated September 28, 2011. (A-18) Thereafter, on February 9, 2012, On Sight entered a guilty plea in Sixth District Court, Suffolk County, (Flanagan, J.) as to each of the five charges and was convicted thereupon. (A-20 - A-26) By Order entered on July 8, 2013, Appellate Term, 9th & 10th Judicial Districts, reversed the judgments of conviction, on the law, and dismissed the accusatory instruments. (A-3 - A-15) The People thereafter sought leave to appeal. On October 4, 2013, the Honorable Victoria A. Graffeo granted the People (the Town of Brookhaven) leave to appeal to this Court pursuant to Criminal Procedure Law § 460.20 from the Order of the Appellate Term, 9th & 10th Judicial Districts, entered July 8, 2013, and certified that “questions of law are involved which ought to be review by the Court of Appeals.” (A-2) 5 APPLICABLE LAW On Sight was charged with violating Section 57 A-11(B) of the Brookhaven Town Code, the full text of which states: With the exception of any sign erected by the Town, County, State or other governmental authority and all signs pertaining to traffic regulations, parking regulations and fire zones which are subject to the rules and regulations of the New York State Vehicle and Traffic Law, no sign, poster, sticker or advertising devices shall be located within or upon the right of way of any Town, State or County road or highway or upon any Town, County or State or other publicly owned land, or upon any utility pole, tree, fence, or any other structure or object thereupon. See Brookhaven Town Code, § 57 A-11(B). The legislative purpose and intent of Section 57 A-11 is expressly set forth in the Code in the following Declaration of Policy: The Town Board hereby finds that the use of signs, posters, stickers and advertising devices along public roadways and on public property creates unreasonable distractions to operators of motor vehicles, creates confusion with regard to traffic lights, signs and signals, impairs visibility of pedestrians and motor vehicles, creates safety hazards to the public and, in particular, pedestrians, distracts from the identification of surrounding businesses and home0house numbering and detracts from the aesthetic character of buildings, sites, districts and the Town as a whole. In addition, the Town Board finds that the undue proliferation of signs, posters, stickers or advertising devices located along public- rights-of-way and on public property detracts from the established character of adjoining properties and of the neighborhood in which they are located and depreciates 6 the values of said properties and neighborhoods. It is hereby found that the removal of said signs, posters, stickers or advertising devices will promote the health, safety, morals and general welfare of the community in which they are located. See Brookhaven Town Code, § 57 A-11(A). The New York State Constitution, Article 9, Section 2, provides, in relevant part, that: (c) In addition to powers granted in the statutes of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government and, (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, *** (6) The acquisition, care, management and use of its highways, roads, streets, avenues, and property. See NY CONST. ART. IX, § 2(c). STATEMENT OF FACTS On March 7, 2011, Town Investigator Walter Maresco observed a white sign at the northwest corner of Route 112 and the Long Island Expressway North Service Road in the Hamlet of Medford, Town of Brookhaven, New York, which location is public property. Said sign was printed with the following message: “Designer Eyeglasses & Sunglasses 50-75% off, starting at $49.99” with a 7 telephone number of “631-580-2020.” Investigator Maresco thereafter dialed the telephone number printed on the sign and spoke with an individual who identified himself as the owner of On Sight Mobile Opticians. (A-41) On March 14, 2011, Investigator Maresco observed an identical On Sight sign at the northeast corner of County Road 83 and the North Service Road of the Long Island Expressway, which location is a right-of-way and public property of the Town of Brookhaven. Said sign was secured to a municipal street sign with a zip tie. (A-39) On March 14, 2011, Investigator Maresco observed an identical On Sight lawn sign at the northeast corner of the 495 Service Road and Hawkins Avenue, which location is a right-of-way and public property of the Town of Brookhaven. Said sign was secured to a traffic sign with a zip tie. (A-38) On March 22, 2011, Investigator Maresco observed an identical On Sight lawn sign posted at the northeast corner of Route 25 and Route 112, which location is a right-of-way and public property of the Town of Brookhaven. (A-37) On March 24, 2011, Investigator Maresco observed an identical On Sight sign at the southeast corner of County Road 83 and Route 112, which location is a right-of-way and public property of the Town of Brookhaven. Said sign was placed directly between two county road signs. (A-40) 8 ARGUMENT POINT I SECTION 57 A-11 IS CONSTITUTIONAL Section 57 A-11 of the Town Code is a content-neutral ban on the placement of signs on public property within the Town. The provision is constitutional as a matter of law under the Supreme Court’s holding in Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118 (1984). In Taxpayers for Vincent, the United States Supreme Court considered whether Section 28.04 of the Los Angeles Municipal Code, which prohibits the posting of signs on public property, violates the First Amendment. See id. The Court held that it did not violate the First Amendment and upheld the ordinance as constitutional. Id. at 817, 104 S. Ct. at 2135. The Court reasoned that “[m]unicipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression.” See id. at 806, 104 S. Ct. at 2129. It held, accordingly, that “the accumulation of signs posted on public property . . . constitutes a significant substantive evil within the City’s power to prohibit.” See id. at 807, 104 S. Ct. at 2130. Most importantly, the Court found that the “ordinance is neutral – indeed it is silent – concerning any speaker’s point of view.” See id. at 804, 104 S. Ct. at 2128. By entirely banning all signs on public property, the City did no more than 9 eliminate the exact evil it sought to remedy. See id. at 810-11, 104 S. Ct. at 2131- 32. See also, Abel v. Orangetown, 724 F.Supp. 232 (S.D.N.Y. November 3, 1989). Section 57 A-11 of the Brookhaven Town Code is constitutionally identical to the Los Angeles provision at issue in Taxpayers for Vincent. It is a content- neutral ban of all signs on public property. It applies equally to commercial and non-commercial signs without reference to or consideration of their content. It directly serves the Town’s valid and expressly articulated interests traffic safety and aesthetics. The legislative purpose of Section 57 A-11 is set forth in its express “Declaration of Policy,” which enumerates traffic and pedestrian safety and the aesthetic character of the Town as the governmental interests that form the basis for the prohibition. These interests have repeatedly been upheld as constitutionally valid justifications for government regulation of signage. See Taxpayers for Vincent, 466 U.S. at 805; New York State Thruway Auth. v. Ashley Motor Court, Inc., 10 N.Y. 151, 218 N.Y.S.2d 640 (1961); see also People v. Goodman, 31 N.Y.2d 262, 265, 338 N.Y.S.2d 97, 100 (1972)(“It is now settled that aesthetics is a valid subject of legislative concern and that reasonable legislation designed to promote the governmental interest in preserving the appearance of the community represents a valid and permissible exercise of the police power.”) 10 It should also be noted that Brookhaven’s regulation of signs on public property not only does not offend the federal constitution, it is guaranteed by the New York State Constitution. Article IX of the state constitution provides that “every local government shall have the power to adopt and amend local laws . . . relating to its property, affairs or government,” [see Art. IX, § 2(c)] and, more specifically, the “acquisition, care, management and use of its highways, roads, streets, avenues, and property.” See NY CONST. ART. IX, § 2(c)(6). In addition, this Court has held that “the State and its political subdivisions may regulate the erection and maintenance of outdoor advertising under the police power.” See People v. Goodman, 31 N.Y.2d 262, 265, 338 N.Y.S.2d 97, 100 (1972). Finally, lest there be any doubt, On Sight itself has never challenged the constitutionality of Section 57 A-11, the sole provision it was charged with and convicted of violating. Moreover, there is no dispute that On Sight, in fact, violated this undisputedly constitutional section of the Town Code.1 1 Although Appellate Term itself recognized that the section of the Code that On Sight was charged and convicted on violating, Section 57 A-11, “represents a constitutional exercise of the Town’s” authority (A-13), it nevertheless followed On Sight’s improper leap into a full blown declaratory judgment analysis that targets sections of the Code other than what On Sight was charged with violating (see Point II). 11 POINT II ANY QUERY AS TO THE CONSTITUTIONALITY OF OTHER SECTIONS OF THE TOWN CODE IS NO DEFENSE TO ON SIGHT’S VIOLATION OF SECTION 57A-11 OF THE TOWN CODE As the Supreme Court has explained, “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). Notwithstanding the wisdom of the foregoing authority, On Sight’s sole resistance to the Town’s prosecution of its admitted code violations has been its misplaced constitutional challenge to provisions of the Town Code that it was not charged with violating, based upon alleged impacts on noncommercial speech in which it has no interest.2 On Sight’s error is not merely in not advancing an as applied challenge; On Sight’s facial overbreadth challenge does not even attack the face of the law it was charged with violating (it challenges other sections of the Code). The overbreadth doctrine, in any case, does not apply to cases involving commercial speech. See Bates v. State Bar of Arizona, 433 U.S. 350, 381, 97 S. Ct. 2691 (1977), and is thus not available to rescue On Sight from its admitted violation. Moreover, the doctrine has been entirely foreclosed, as this Court has 2 “Basic, critical and prerequisite to the defendant’s position of unconstitutionality is the defendant’s standing to assert such a contention in this court.” People v. D’Arcy, 79 Misc.2d 113, 359 N.Y.S.2d 453 (Allegany County Court 1974). 12 held, to commercial entities that have no connection whatsoever to the protected class of noncommercial speech. This Court’s holding in Syracuse Savings Bank v. DeWitt, 56 N.Y.2d 671, 451 N.Y.S.2d 713 (1982) is fully controlling of the matter at bar and precludes On Sight from succeeding on its lone and misplaced defense. In Syracuse Savings Bank, this Court held that a commercial enterprise that had “no direct interest in noncommercial speech and no commercial interest in others who themselves have such an interest” lacked standing to raise any constitutional First Amendment challenge to the ordinance. Id. at 673, 451 N.Y.S.2d at 714. Thus, even where a law “regulates, or may be said to regulate, noncommercial speech,” a commercial litigant without an interest in such noncommercial speech simply cannot make the constitutional challenge. See id; see also, Commissioner of Community Development v. Foster & Kleise, Division of Metromedia, Inc., 123 A.D.2d 495, 496, 507 N.Y.S.2d 95, 96 (4th Dep’t 1986)(“Respondent lacks standing to raise a First Amendment overbreadth challenge to the ordinance as it has made no showing of any direct interest in noncommercial speech or any commercial interest in others who have such an interest”). In the matter at bar, On Sight was charged with, pleaded guilty to and was convicted of violating Section 57 A-11 of the Town Code based upon its undisputed placement of advertising signs in the Town’s public right-of-ways. 13 While On Sight conceded its violation of Section 57 A-11 (it pleaded guilty and, additionally, never contested the factual allegations in the accusatory instruments), it moved to dismiss the charges, and thereafter appealed the conviction, solely on the assertion that other sections of Chapter 57 A of the Town Code were unconstitutional. On Sight’s challenges, however, were misplaced and mistaken ab initio. First, by its motion to dismiss, On Sight sought an order “declaring Chapter 57 A of the Brookhaven Town Code unconstitutional” (A-42). The Suffolk County District Court, however, lacks jurisdiction to render a declaratory judgment. 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). Second, On Sight completely ignores the section of the Town Code that it was charged with violating and, instead, bases its constitutional challenge entirely on other provisions of the chapter. To the extent that On Sight had a constitutional defense to the charges, its recourse—both as a matter of jurisdiction limitation and constitutional law—was confined to a challenge of the specific law that it was charged with violating—i.e., Section 57 A-11. Finally, On Sight, as a commercial enterprise with no interest other than advertising its own product, cannot, as a 14 matter of law, raise any perceived unconstitutional treatment of noncommercial speech as a defense to its own admittedly unlawful conduct. a. On Sight’s Constitutional Challenge Should Have Been Confined to the Code Provision, Section 57 A-11, it was Charged with Violating On Sight moved to dismiss the charges against it (for violation Section 57 A- 11) upon the assertions that Section 57 A-3 of the Town Code is unconstitutional and that certain portions of sections 57 A-4, A-5, A-6, A-7 and A-8 are also constitutionally problematic (A-48). Notably, however, On Sight was not charged with violating Section 57 A-3 or any of the other sections it cites for perceived constitutional infirmities. Moreover, On Sight conspicuously omits any reference to the one provision, Section 57 A-11, that it was charged with violating and thereby tacitly concedes its constitutionality. 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). Courts have “rejected the contention that a plaintiff who has suffered injury under one provision of an ordinance has standing to challenge the entire ordinance.” Maverick Media Group, Inc. v. Hillsborough County, 528 F.3d 817, 15 821-22 (11th Cir. 2008). As courts have recognized, the overbreadth doctrine does not grant a party “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 id. at 822; see also Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 892 (9th Cir. 2007) (“Get Outdoors II has standing to challenge only those provisions that applied to it … [it] cannot leverage its injuries under certain, specific provisions to state an injury under the sign ordinance generally). In the matter at bar, On Sight’s motion to dismiss the informations, and its appeal from the judgments of conviction, should have been confined to the provision which On Sight was charged with violating. “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.” Maverick Media Group, 528 F.3d at 822. Here, On Sight does not contend that the same provision that it was convicted of violating, Section 57 A-11, might be unconstitutionally applied to others. Instead, it argues, impermissibly, that other provisions might be unconstitutionally applied to other parties.3 3 This Court’s analysis in People v. Barton is instructive as it illustrates that when a criminal defendant raises a constitutional challenge, the challenge is properly made to the specific law the defendant is charged with violating. See People v. Barton, 8 N.Y.3d 70, 828 N.Y.S.2d 260 16 Furthermore, the Sixth District Court did not have jurisdiction to entertain On Sight’s expansive constitutional argument. As the very same District Court observed in another case: “in the absence of a constitutional challenge to the specific ordinance defendant is charged with violating, this Court is without jurisdiction to entertain [an] application [to declare the entire chapter unconstitutional].” See People v. Sunrise Outdoor Advertising, Inc., (Unpublished) (Sixth District Court, Suffolk County, Bergson, J. July 17, 2008). b. On Sight Cannot Advance an Overbreadth Challenge Because it Has No Interest in the Noncommercial Speech of Others Although On Sight challenges certain provisions of the Town Code as favoring commercial speech over noncommercial speech, it is not positioned to advance that argument as a defense to charges that it violated the undisputedly constitutional Section 57 A-11. On Sight, after all, is engaged entirely in commercial speech: It was charged with violating Section 57 A-11 by placing wire-framed signs advertising “Designer Eyeglasses & Sunglasses 50 – 75% off” (2006). In Barton, the defendant appealed from a judgment convicting him of violating § 44- 4(H) of the Rochester City Code, a provision which prohibits “aggressive panhandling.” The defendant moved to dismiss the accusatory instrument on the ground that the provision was unconstitutionally overbroad. He did not contend that the ordinance was unconstitutional as applied to him, but rather that it was potentially overbroad in violation of the First Amendment as applied to others. There are at least six separate prohibitions set forth in §44-4 of the City Code (§§ 44-4 (C) through (H). Barton was specifically charged with violating 44-4(H). The constitutional challenge, and the judicial analysis of same, was appropriately confined to the particular provision Barton was charged with violating 44-4(H); it did not consider the other provisions or the Chapter as a whole. 17 and “starting at $49.00” in the right-of-way and public property of the Town of Brookhaven. (A-41) On Sight has merely opportunistically searched the Town Code in order to locate a means to evade liability for its undisputed guilt in violating an undisputedly constitutional section of the Code. It is undisputed that On Sight has not engaged in any noncommercial speech whatsoever. It does not post political signs, expressive signs, message signs, religious signs or engage in any other form of communication that enjoys a more exalted or protected status under the First Amendment. If it were the case that certain sections of the Town Code favored commercial speech over noncommercial speech, On Sight Mobile Opticians, Inc., roadside marketer of discount sunglasses, cannot make that argument. Syracuse Savings Bank v. DeWitt, 56 N.Y.2d 671, 451 N.Y.S.2d 713 (1982). Based upon this Court’s holding in Syracuse Savings, those with “no direct interest in noncommercial speech and no commercial interest in others who themselves have such an interest” cannot defend a prosecution by advancing an overbreadth challenge based upon purported effects on noncommercial speech. 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 18 some concern for the Code’s treatment of noncommercial speech. On Sight’s motion to dismiss, thus, was a non-starter both because it challenged unrelated sections of the Town Code and because it represented an overbreadth challenge that it had no capacity to assert. Although On Sight relies on the holdings 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), those cases fully are fully consonant with this Court’s holding in Syracuse Savings as regarding the issue of the scope of the overbreadth doctrine. In Metromedia, the petitioner was an outdoor advertising company whose billboards “conveyed a substantial amount of noncommercial advertising.” See Metromedia, 453 U.S. at 504, 101 S. Ct. at 2890The Supreme Court found that the billboard company had standing to challenge the facial validity of the statue at issue because, although the overbreadth doctrine does not apply to commercial speech, the company nevertheless had a “commercial interest” in the noncommercial speech of others—i.e., it leased billboard space to noncommercial advertisers. See id., 453 U.S. at 504, footnote 11, 101 S. Ct. at 2890. In the matter at bar, by significant contrast, On Sight does not have a “commercial interest” in the noncommercial speech of others. It does not sell advertising space and has no 19 connection whatsoever to any noncommercial speech; it merely plunks down, in public rights-of-way, signs advertising its own commercial business.4 Similarly, in National Advertising, the plaintiff was once again an outdoor advertising company whose billboards carried both commercial and noncommercial messages. The Second Circuit found that National had standing because of its “commercial interest” in the noncommercial speech regulated by the subject ordinances. See National Advertising, 900 F.2d at 555. Here, however, On Sight lacks any such “commercial interest” in the noncommercial speech of others. No portion of On Sight’s signage is devoted to noncommercial speech, nor does it lease space or otherwise assist in the posting of signs carrying noncommercial messages. As the Supreme Court has explained, “there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law--particularly a law that reflects legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.” See Virginia v. Hicks, 539 U.S. 113, 119, 123 S. Ct. 2191, 4 “Commercial price and product advertising differs markedly from ideological expression because it is confined to the promotion of specific goods or services. The First Amendment protects the advertisement because of the information of potential interest and value conveyed, rather than because of any direct contribution to the interchange of ideas.” See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumers Council, 425 U.S. 748, 779-80, 96 S.Ct. 1817, 1835 (1976). 20 2197 (2003), citing Broadrick v. Oklahoma, 413 U.S. 601 (1973). On Sight’s sole defense reached beyond the jurisdictional bounds of the District Court, is barred by this Court’s holding in Syracuse Savings, and is well beyond the breaking point identified by the Supreme Court in the foregoing passage from Virginia v. Hicks. POINT III SECTION 57 A-11 STANDS ON ITS OWN As argued above, the courts below should have confined their constitutional analysis to Section 57 A-11. This approach is appropriate for the obvious reason that Section 57 A-11 is the provision of the Town Code that On Sight was charged with violating. It is, though, even more particularly appropriate in this case because Section 57 A-11 is a stand-alone provision which exists separate and apart from other sections of Chapter 57 A both in its purpose and function (which is also to say that it is particularly inappropriate—indeed, it was legal error—for the judicial review to have looked outside this independent provision). Although the Town contends that the independent operation of Section 57 A-11 is self-evident from the text of the provision itself, to the extent necessary state law principles of severance may be applied to preserve and uphold Section 57 A-11 (as well as the judgments of conviction at issue here, which were based exclusively upon On Sight’s undisputed violation of same). 21 “Under New York law, court should refrain from invalidating an entire statute when only portions of it are objectionable.” See Gary D. Peake Excavating v. Town Board of the Town of Hancock, 93 F.3d 68 (2d Cir. 1996). “Our right to destroy is bounded by the limits of necessity. Our duty is to save unless in saving we pervert.” People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 62, (1920)(Cardozo, J.), cert. denied, 256 U.S. 702, 41 S. Ct. 624, 65 L. Ed. 1179 (1921). “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.” Id. at 48. See also Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam), quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234 (1932)(“Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” ) Applying these severance standards to matter at bar is perhaps easier here than in the ordinary case. The reason for that is that, here, Section 57 A-11 contains its own express “Declaration of Purpose.” Accordingly, the Court does not need to speculate about the legislative desires of the Town Board—they are explicitly set forth in the Code. Clearly, the Town Board enacted Section 57 A-11 to address well established, legitimate Town interests in traffic and pedestrian 22 safety and aesthetics. These interests are directly advanced by the prohibition against signage in public rights-of-way. There is no challenge to the constitutionality of this provision. Thus, while the Town contends that On Sight is without capacity to challenge other sections of the Code, even if those sections were deemed to be constitutional, there is no basis to strike down Section 57 A-11, or to reverse the convictions that were entered upon On Sight’s pleading guilty to violating that section. Justice Cardozo’s standard for severance queries whether the legislature would have wished for the constitutional provisions to remain even if unconstitutional provision were removed. Here, that is a question answered in the affirmative by the ordinance itself. Yes, the Town Board, as reflected in the declaration of purpose, wants to maintain its prohibition of signage on public property. The preservation of Section 57 A-11 is also compelled by the chapter’s severance clause. “An express statement by a legislative body that the valid provisions of a statute or ordinance should be enforced, despite a judicial determination that a part is unconstitutional, is generally adhered to by the courts.” Islip v. Caviglia, 141 A.D.2d 148, 168, 532 N.Y.S.2d 783, 795 (2nd Dep’t 1988). In addition, Section 57 A-ll is quite obviously a stand-alone provision. It contains a singular prohibition - banning signage on public property - and is not related in substance, procedure or operation to the other provisions within the Chapter. Courts may resist severance where unconstitutional provisions are "inextricably intertwined" with constitutional provisions. This is no such a case. Here, Section 57 A-ll does not operate in conjunction with any other provision of Chapter 57 A, nor does any other section refer to or rely on Section 57 A-11. 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 March 13, 2014 Respectfully submitted, SINNREICH KOSAKOFF & MESSINA LLP By: Jonathan Sinnreich Timothy F. Hill Attorneys for Appellant 267 Carleton A venue, Suite 301 Central Islip, New York 11722 (631) 650-1200 23 ADDENDUM DC- 88 Order on Motion Docket/Index No. BRTO 447-07 DISTRICT COURT OF THE COUNTY OF SUFFOLK, SIXTH DISTRICT Present: HON HOWARD M. BERGSON Motion Date JULY 17,20~ JUDGE THE PEOPLE OF THE STATE OF NEW YORK AGAINST SUNRISE OUTDOOR ADVERTISING, INC. Defendant. Upon the following papers numbered 1 to_7_read on this motion by defendant to dismiss Notice of Motion/Order to Show Cause and sul:-'porting papers____L_; Notice of. Cross Motion and supporting papers· __ ; Answering Affidavits and supporting papers_4_ ; Replying Affidavits and. supporting papers··-·--. ; Filed papers_; Other exhibits 2; 5; defendant's memorandum of law 3; Peoples's memorandum of--law 6 ;• defendant-'s· reply memorandum· of. law 7 (and after hearing counsel in support of and opposed to the motion) it is, ORDERED the motion is granted and the accusatory instrument is dismissed. Pursuant to. CPL §§ 170.30(1) (a) and_170.35(1)©, the Court may dismiss an -·------~------~- --accusatory--instrument---when~-'~[-t-}he----st-atute'""def:-ining~t-he·~-~---~~~-~-~~---"~'~---.-~----~~-----~.,~-~--~~·-~--~--····offense chargedis unconstitutional or otherwise invalid". However, in seeking dismissal of the accusatory instrument on constitutional grounds this defendant is not challengin~ the constitutionality of the particular ordinance charged herein, i.e., section 57-22A which prohibits off-site "commercial signage'' defined as billboards. The defendant claims· that Chapter 57 of the. Brookhaven Code is facially unconstitutional because it violates the First Amendment of the United States Constitution and is therefore unenforceable. Specifically, the defendant asserts that because Chapter 57 contains provisions only allowing commercial signs which advertise on-premise goods or services but does not permit certaln non-commercial signs, it has the constitutional impact of favoring commercial speech over non-commercial speech. As a result, the defendant believes that the entire ~hapter should be declared unconstitutional since these provisions are intertwined with the otherwise valid portions of the ordinance. _ Notwithstanding the foregoing, in the absence of a constitutional challenge to the specific ordinance defendant is charged with violating, this Court is without jurisdiction to entertain the instant application. Nevertheless, the Court finds dismissal is warranted for other reasons hot specifically requested by defendant. It is well established that in order £or an accusatory instrument to be sufficient- on its face, --every element of the offense· charged must be supported -by nonhearsay allegations 6f fact that establish, if true every element of the offense (CPL 100.15; 100.40[1]; People v. Casey, 95 NY2d 354). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense ... they should be given a fair and not overly restrictive or technical reading" (supra, at 360). Under section 57A-22 of the Code of the Town of Brookhaven, criminal liability may only be imposed against the owner of "the sign and/or the owner land upon which the sign is placed and/or the entity advertised on said sign . . . " (Brookhaven Code § 57A-23). However, the accusatory instrument charging ' ( People vs. Sunrise Outdoor Advertising, Inc. BRTO 447-07 Page 2 defendant with violating section 57A-22 of the Code is jurisdictionally defective as it fails to contain the necessary nonhearsay evidentiary allegations supporting or tending to support the charge and therefore does not provide reasonable cause to believe that defendant committed the offense charged (CPL 100.15[3],; 100.40[b]; People v. Casey, Bupra). In particular, the accusatory instrument merely alleges that the "defendant did occupy th~ subject premises" where the billboard is located but fails to contain any nonhearsay allegation that defendant is the owner of that property or any nonhearsay allegation creating an inference that the defendant is the owner of the property upon which the bi-llboard is located; Dated:
