The People, Respondent,v.Ray Lam, Appellant.BriefN.Y.April 24, 2013To be argued by ANDREW E. SEEWALD (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - RAY LAM, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ELEANOR J. OSTROW ANDREW E. SEEWALD ASSISTANT DISTRICT ATTORNEYS Of Counsel NOVEMBER 29, 2012 -ii- TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii INTRODUCTION................................................................................................................ 1 COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................... 3 DEFENDANT’S MOTION TO DISMISS ...................................................................... 4 The Motion Papers ................................................................................................................. 4 The Judge’s Ruling On the Motion to Dismiss .................................................................. 5 THE EVIDENCE AT TRIAL ............................................................................................ 6 The People’s Case ................................................................................................................... 6 The Defense Case ................................................................................................................... 7 The Parties’ Closing Arguments ........................................................................................... 8 The Trial Judge’s Ruling on the First Amendment Issue and Verdict ............................ 9 THE APPELLATE TERM’S DECISION ........................................................................ 9 POINT THE COURTS BELOW CORRECTLY DETERMINED THAT DEFENDANT’S T-SHIRTS WERE PREDOMINANTLY UTILITARIAN AND, THUS, DEFENDANT’S VENDING OF THEM DID NOT MERIT FREE SPEECH PROTECTION; IN ANY EVENT, THE VENDING LAW WAS A PERMISSIBLE TIME, PLACE, AND MANNER RESTRICTION THAT LEFT DEFENDANT WITH AMPLE ALTERNATIVE CHANNELS OF COMMUNICATION. ................................................. 10 CONCLUSION ................................................................................................................... 34 -iii- TABLE OF AUTHORITIES FEDERAL CASES Bery v. City of New York, 94 Civ. 4253 (MGC) (S.D.N.Y. Oct. 30, 1997) (Permanent Injunction on Consent dated Oct. 21, 1997) ........................ 11-12, 29-30 Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2nd Cir. 2004) ........... 19 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) ........................ 18-19, 26 Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ............................................. 29 Heffron v. Intl. Socy. for Krishna Consciousness, Inc., 452 U.S. 640 (1981) ............................. 27 Hill v. Colorado, 530 U.S. 703 (2000) ............................................................................. 28, 32 Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010) ................................................ 26 Hunt v. City of Los Angeles, 601 F.Supp.2d 1158 (C.D. Cal. 2009) ................................... 17 Kleinman v. City of San Marcos, 597 F.3d 323 (5th Cir. 2010) ............................................. 17 Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988)...................................................... 29 Marcavage v. City of New York, 689 F.3d 98 (2nd Cir. 2012) ......................................... 26-27 Mastrovincenzo v. City of New York, 435 F.3d 78 (2nd Cir. 2006)........ 4-5, 12, 14-17, 19-30 Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180 (1997) .......................................... 26 United States v. Albertini, 472 U.S. 675 (1985) ..................................................................... 28 Vincenty v. Bloomberg, 476 F.3d 74 (2nd Cir. 2007) ............................................................. 28 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ....................................................... 26, 28 Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring) ............................... 14 STATE CASES 677 New Loudon Corp. v. New York Tax Appeals Tribunal, -- N.Y.3d --, 2012 WL 5199386 (Oct. 23, 2012) ................................................................................................. 23 Coleman v. City of Mesa, 284 P.3d 863 (Ariz. 2012) ............................................................ 22 -iv- Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991) ...................................................... 25 Matter of Jimmy D., 15 N.Y.3d 417 (2010)........................................................................... 13 Matter of Rogers v. New York City Tr. Auth., 89 N.Y.2d 692 (1997) .................................. 25 People v. Angelo, 88 N.Y.2d 217 (1996) ................................................................................ 23 People v. Barton, 8 N.Y.3d 70 (2006) ........................................................................ 18, 25-26 People v. Coleman, 56 N.Y.2d 269 (1982) ............................................................................. 30 People v. Diouf, 153 Misc.2d 887 (Crim. Ct. N.Y. Co. 1992) ............................................. 11 People v. Franqui, 26 Misc.3d 313 (Crim. Ct. N.Y. Co. 2009) ........................................... 17 People v. Kinchen, 60 N.Y.2d 772 (1983) ............................................................................... 30 People v. Lam, 34 Misc.3d 130(A) (App. Term 2011) ................................................ 3, 9, 24 People v. Larsen, 29 Misc.3d 423 (Crim. Ct. N.Y. Co. 2010) ................................. 12, 17, 22 People v. Lee, 19 Misc.3d 791 (Crim. Ct. N.Y. Co. 2008) .................................................. 17 People v. McRay, 51 N.Y.2d 594 (1980)................................................................................ 13 People v. Ndiaye, 26 Misc.3d 212 (Crim. Ct. N.Y. Co. 2009) ....................................... 12, 17 People v. Rosen, 96 N.Y.2d 329 (2001) ............................................................................ 18, 25 People v. Saul, 3 Misc.3d 260 [Crim. Ct. N.Y. Co. 2004] ................................................... 15 People v. Silva-Almodovar, -- N.Y.S.2d --, 2012 WL 3892869 (N.Y. Sup. App. Term Sept. 7, 2012) ........................................................................................................ 17 People v. Yavru-Sakuk, 98 N.Y.2d 56 (2002) ....................................................................... 21 State v. Chepilko, 965 A.2d 190 (N.J. Super. A.D. 2009) ................................................... 17 FEDERAL STATUTES First Amendment .....................................................................2-5, 8-9, 13-19, 22-26, 29-30 Fourteenth Amendment ...................................................................................................... 13 -v- STATE STATUTES CPL §170.30(1)(f) ................................................................................................................. 19 CPL §170.45 .......................................................................................................................... 19 CPL §210.45 .......................................................................................................................... 19 CPL §470.35(1) ............................................................................................................... 18, 25 N.Y.C. Admin. Code § 20-452(b) ....................................................................................... 11 N.Y.C. Admin. Code §20-453 ............................................................................... 1, 9, 11, 30 N.Y.C. Admin. Code §20-465 ............................................................................................. 31 N.Y.C. Admin. Code §20-465(a) ........................................................................................ 31 N.Y.C. Admin. Code §20-465(e) ........................................................................................ 31 N.Y.C. Admin. Code §20-465(j) ......................................................................................... 32 N.Y.C. Local Law No. 40-1988, §1 .................................................................................... 27 N.Y.C. Local Law No. 50-1979, §1 ............................................................................... 27-28 New York Const. Art. I, § 8 .................................................................................... 14, 18, 25 OTHER AUTHORITIES Bridges, Map of the City of New York and Island of Manhattan With Explanatory Remarks and References ...................................................................................................... 32 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RAY LAM, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Theodore T. Jones, granted on June 21, 2012, defendant Ray Lam appeals from a December 23, 2011, order of the Appellate Term, First Department. That order affirmed a September 16, 2010, judgment of the Criminal Court of the City of New York, New York County (Marc J. Whiten, J., on dismissal motion; Matthew A. Sciarrino, J., at trial and sentence), convicting defendant, after a non-jury trial, of Unlicensed General Vending (New York City Administrative Code §20-453). Defendant was sentenced to pay a $250 fine. On June 6, 2010, in Union Square Park, in Manhattan, defendant displayed at least a half-dozen, folded t-shirts on a table. When a plainclothes police officer asked how much a t-shirt cost, defendant said $20. Defendant did not have a general vendor’s license, and was arrested. -2- Under docket number 2010NY042261, defendant was charged by information for violating the New York City Administrative Code provision making it unlawful to act as a general vendor without first obtaining a license. Before trial, defendant moved to dismiss the information, contending that his t-shirts were art and that his vending of them was protected by the First Amendment. The People opposed the motion, making a two-fold argument. They argued that defendant’s t-shirts were not artwork and did not have a dominant expressive purpose; therefore, defendant’s vending of them was not protected activity under the First Amendment. In any event, even if defendant’s vending were protected, New York City’s licensing scheme constituted a permissible time, place, and manner restriction on that activity. On September 16, 2010, Judge Whiten denied defendant’s motion. Defendant proceeded to a bench trial that day before Judge Sciarrino. During summations, defendant renewed his claim that his vending activity was protected by the First Amendment. Ruling from the bench, Judge Sciarrino determined that the First Amendment did not protect defendant’s t-shirt vending, found defendant guilty as charged, and sentenced defendant as set forth above. On his appeal to the Appellate Term, defendant argued that the verdict was based on “insufficient” evidence, and “was against the weight of the evidence.” Defendant also argued that defendant’s t-shirt vending was protected by the First Amendment. The People refuted defendant’s claims. On December 23, 2011, the Appellate Term rejected defendant’s claims and unanimously affirmed defendant’s -3- conviction. People v. Lam, 34 Misc.3d 130(A) (App. Term 2011). As is pertinent here, the Appellate Term determined that the First Amendment did not protect defendant’s t-shirt vending because the “dominant purpose” of defendant’s wares “was utilitarian, and not expressive” (A. 3). In the alternative, even if the First Amendment did protect defendant’s t-shirt vending, the enforcement of the general vending law against him was permissible because it left open to him “ample alternative channels of communication” (A. 3). On appeal to this Court, defendant argues that the Appellate Term erred in two respects: by finding that his t-shirt vending was not constitutionally protected speech; and by finding that, even if his t-shirt vending were an activity meriting constitutional protection, the general vending law was a permissible time, place, and manner restriction that left open ample alternative channels for that activity. Defendant is wrong in each respect. COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Even if defendant’s t-shirts contained some expressive elements, were they predominantly utilitarian in nature, such that defendant’s vending of them was undeserving of free speech protection? The court below answered this question, “Yes.” -4- 2. Even if defendant’s t-shirt vending were an activity that merited free speech protection, is New York City’s general vending law a permissible time, place, and manner restriction that left open ample alternative channels for that activity? The court below answered this question, “Yes.” DEFENDANT’S MOTION TO DISMISS The Motion Papers In a written motion dated August 31, 2010, defendant moved to dismiss the information charging him with unlicensed general vending. Specifically, defendant argued that he had a First Amendment right to sell his t-shirts because he “makes artwork that is wearable and can also be displayed hung [sic] on one’s wall” (A. 11).1 Defendant claimed that “the unique characteristics of each piece are designed to allow the wearer to convey an individual and distinctive message” (A. 15). Relying on the test set forth in Mastrovincenzo v. City of New York, 435 F.3d 78 (2nd Cir. 2006), defendant argued that his t-shirts were “expressive merchandise” (A. 15). Defendant also argued that it was “important to the communicative value of his work” that he sell it in Union Square, an area that “is home to many artists” (A. 16). In a written response dated September 15, 2010, the People opposed defendant’s motion on two grounds. First, the People maintained that the First 1 References beginning with “A” are to defendant’s Appendix. -5- Amendment did not protect the sale of defendant’s t-shirts, because the t-shirts were “not artwork” and their dominant purpose was “not expressive”; rather, the t-shirts were primarily “items of clothing to be worn” (A. 19). The People described the shirts as bearing “images,” but not as being “used to communicate ideas, concepts, or emotions” (A. 19). In that regard, the People noted that the shirts did “not carry either words or particularized social or political messages” (A. 21). Next, the People maintained that, even assuming arguendo that the shirts were “predominantly expressive,” the First Amendment did not bar New York City’s “content-neutral” regulation of their sale in public places (A. 20). Specifically, the People observed that content-neutral licensing schemes were permissible under the First Amendment if they passed the intermediate scrutiny test. Here, the People explained, the licensing requirements passed that test because: (1) the requirements were “within the constitutional power of the government”; (2) they furthered “an important or substantial governmental interest” “unrelated to the suppression of free expression”; and (3) their “incidental restriction on First Amendment freedoms [was] no greater than essential to the furtherance of that interest” (A. 20-21). The Judge’s Ruling On the Motion to Dismiss On September 16, 2010, Judge Whiten orally denied defendant’s motion to dismiss. Citing Mastrovincenzo, the court observed that “the issue comes down to the weighing of the use of the item as art as opposed to some sort of [other] use; in this -6- case, the ability to wear the t-shirt” (A. 27). The court held that the dominant purpose of defendant’s t-shirts was “as apparel” (A. 29). THE EVIDENCE AT TRIAL The People’s Case On June 6, 2010, Police Officer ANTHONY FARANDA was in plain clothes, working as a member of the Manhattan South Peddler Task Force (Faranda: A. 37-38, 47). During the mid-afternoon, in Union Square Park, in the vicinity of East 16th Street and Union Square West, in Manhattan, Faranda saw defendant arranging t- shirts on a folding table (Faranda: A. 38-40, 43-45, 47-48). The park was “crowded,” and “numerous people” were “walking by.” The park is generally a busy area and is near a subway station (Faranda: A. 40, 44, 49-50). The t-shirts were “folded neatly” on the table. The t-shirts were “arranged next to each other,” “approximately five wide by maybe three long” (Faranda: A. 45). Faranda was unsure whether defendant was “setting up” or “putting away things” (Faranda: A. 45, 48). Faranda asked defendant how much a t-shirt cost. Defendant said $20. Faranda asked defendant if he had a license, and defendant said no. Faranda then arrested defendant and took custody of six of the t-shirts (Faranda: A. 38, 40, 42-43, 47, 50). At trial, Faranda identified defendant as the man Faranda had arrested for unlicensed general vending on June 6th (Faranda: A. 37-38). Additionally, the People -7- introduced into evidence the t-shirts Faranda recovered from defendant’s table (Faranda: A. 42-43; People’s Exh. 1).2 The Defense Case Defendant Ray Lam was an “art contractor” who, in addition to his occupation, “d[id] artwork” (Lam: A. 52-53). According to defendant, the “subject matter” of his artwork was “social, political, religious in nature, and current events, and whatever [was] of interest to the general public” (Lam: A. 53). Defendant produced artwork by “drawing on a computer,” and then printing the drawings on canvases, prints, and t-shirts, which he sold (Lam: A. 55). Defendant had had “gallery showings” in Hong Kong, Boston, and California (Lam: A. 56). People had sometimes framed defendant’s t-shirts (Lam: A. 56). On June 6, 2010, defendant was offering to sell t-shirts, which he displayed on a table in Union Square. When a police officer approached and asked defendant how much a t-shirt cost, defendant said $20 (Lam: A. 59-60). Defendant did not have a Department of Consumer Affairs Vending License, and had never had one (Lam: A. 60). Defendant “thought” he did not need a license to sell his t-shirts on the street because they were “art” (Lam: A. 60-61). 2 The People have been informed by the New York Police Department Property Clerk’s Office that the t-shirts were destroyed some time after trial. As discussed hereafter at page 21, n. 9, the unavailability of that exhibit does not compromise defendant’s right to appeal, nor does defendant contend otherwise in this Court. -8- At trial, defendant introduced four drawings as “portray[als] of “what [was] on the t-shirts” he had been selling on June 6th (Colloquy: A. 54-55; Defense Exh. A).3 Defendant, who had created all four drawings, did not actually describe the drawings, but offered interpretations of them: one was “about science – it’s like my counter to religion”; the second was “a statement on the state of surveillance”; the third was his “tribute to all 1984, since this was a lot of breakdown of civil rights and people being watched”; and the last was “about the Iraq War” (Lam: A. 55). Although the People had introduced into evidence six of the t-shirts defendant had been selling at the time of his arrest, defendant did not specifically address the contents of those t-shirts. The Parties’ Closing Arguments In the defense closing argument, defense counsel argued that the People had “not proven their case” (A. 62). Specifically, counsel asserted that “[n]obody stopped at [defendant’s] table,” and defendant was not “engaging in a sale” when he was arrested (A. 62-63). Counsel also renewed the First Amendment claim defendant had raised in his pretrial motion to dismiss. In that regard, defense counsel maintained that defendant had a “fundamental First Amendment right to display and sell his” t- shirts, which he deemed “art” (A. 62). 3 When defendant offered the drawings into evidence, the People objected on “relevance” grounds, stating, “These have nothing to do with the t-shirts that are before the Court.” Defendant’s trial counsel responded, “I would argue that they’re similar, substantially similar, to what is on the t-shirts” (A. 54). The court admitted the drawings as Defense Exhibit A. Defendant’s appellate counsel has told the District Attorney’s Office that he cannot locate Defense Exhibit A. -9- The People countered that the trial evidence proved that defendant was selling t-shirts in a public place without a license (A. 65-66). The People further argued that the First Amendment did not protect defendant’s t-shirt vending (A. 66).4 The Trial Judge’s Ruling on the First Amendment Issue and Verdict Judge Sciarrino found that the People proved beyond a reasonable doubt that “defendant offered for sale t-shirts, that his purpose was to sell t-shirts, and that the defendant did not have a general vendor’s license” (A. 67). Addressing defendant’s renewed First Amendment claim, Judge Sciarrino rejected defendant’s argument that the First Amendment protected his vending activity. Specifically, Judge Sciarrino stated that he had “considered whether [the t-shirts] have a common non-expressive purpose or utility, and whether this non-expressive purpose is dominant or not” (A. 67). The court found that when the “artistic image[s]” were transferred to t-shirts, their dominant purpose became “clothing” (A. 67). Accordingly, Judge Sciarrino found defendant guilty of unlicensed general vending in violation of Administrative Code §20-453. The judge imposed the minimum fine, $250 (A. 67-68). THE APPELLATE TERM’S DECISION The Appellate Term unanimously affirmed the judgment of conviction. People v. Lam, 34 Misc.3d 130(A) (App. Term 2011); (A. 2). The court held that defendant’s 4 The People also argued that the “First Amendment issue” had already been decided when Judge Whiten denied defendant’s pre-trial motion to dismiss (A. 66). -10- conviction “was supported by legally sufficient evidence and was not against the weight of the evidence” (A. 2). The court also rejected defendant’s claim that his t- shirt vending was “constitutionally protected free speech,” finding that the shirts “were mere commercial goods whose dominant purpose was utilitarian, and not expressive” (A. 3). In reaching that conclusion, the court cited “the manner in which defendant displayed the tee-shirts – folded and in piles” (A. 3). The court also cited the “uniform, modest selling price” of $20 for each t-shirt that defendant had quoted to the officer (A. 3). Moreover, the court held that, even if defendant’s t-shirt vending did warrant some free speech protection, the enforcement of the general vending law against defendant was permissible because it left open to him “ample alternative channels of communication” (A. 3). POINT THE COURTS BELOW CORRECTLY DETERMINED THAT DEFENDANT’S T-SHIRTS WERE PREDOMINANTLY UTILITARIAN AND, THUS, DEFENDANT’S VENDING OF THEM DID NOT MERIT FREE SPEECH PROTECTION; IN ANY EVENT, THE VENDING LAW WAS A PERMISSIBLE TIME, PLACE, AND MANNER RESTRICTION THAT LEFT DEFENDANT WITH AMPLE ALTERNATIVE CHANNELS OF COMMUNICATION (Answering Defendant’s Brief). Defendant was convicted of violating New York City’s general vending law for selling t-shirts in a public place without a license to do so. Defendant contends that -11- his conviction should be vacated and the charge of unlicensed vending dismissed on the ground that his vending was constitutionally protected speech. Defendant’s claim is meritless. His t-shirt vending did not warrant constitutional protection because the dominant purpose of the t-shirts was not expressive, but rather utilitarian. And, even if defendant’s t-shirt vending was constitutionally protected activity, New York City’s general vending law was a permissible time, place, and manner restriction that left defendant with ample alternative channels of communication. New York City’s general vending law is set forth in the New York City Administrative Code. The Code specifies that “[i]t shall be unlawful for any individual to act as a general vendor without having first obtained a license in accordance with this subchapter.” N.Y.C. Admin. Code § 20-453. A “general vendor” is a “person who hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services…in a public space.” N.Y.C. Admin. Code § 20-452(b); see People v. Diouf, 153 Misc.2d 887, 889 (Crim. Ct. N.Y. Co. 1992) (“Administrative Code § 20-453 does not require that there be a completed sale or that there be any customers for the items.”). The general vending law expressly excepts from the licensing requirement anyone who sells “only newspapers, periodicals, books, pamphlets or other similar written material.” N.Y.C. Admin. Code § 20-453. In addition, to resolve a federal lawsuit brought by art vendors, the City voluntarily agreed to a permanent injunction prohibiting the enforcement of the general vending law against unlicensed vendors of “paintings, photographs, prints, and sculptures.” Bery v. City of New York, 94 Civ. 4253 -12- (MGC) (S.D.N.Y. Oct. 30, 1997) (Permanent Injunction on Consent dated Oct. 21, 1997) (unreported); see Mastrovincenzo v. City of New York, 435 F.3d at 81-82. The Bery consent injunction thus effectively created an exemption from the licensing requirement for the unlicensed sale of “paintings, photographs, prints and sculptures.” As a result, to violate the general vending law, a defendant must vend something other than the excepted written materials or “paintings, photographs, prints, [or] sculptures.” See People v. Larsen, 29 Misc.3d 423 (Crim. Ct. N.Y. Co. 2010); People v. Ndiaye, 26 Misc.3d 212, 221, n.12 (Crim. Ct. N.Y. Co. 2009). At defendant’s trial, the People proved beyond a reasonable doubt that defendant offered to sell t-shirts to a plainclothes police officer in a public place without a license. Because defendant’s wares were not written material, paintings, photographs, prints, or sculptures, defendant was guilty of violating New York City’s general vending law. Defendant does not dispute that the trial evidence established his guilt of unlicensed vending. However, he contends that the prosecution of him was nevertheless unlawful because his vending of the t-shirts was constitutionally protected speech. In fact, defendant’s t-shirts were not so expressive in nature that defendant’s vending of them deserved free speech protection. Moreover, even if defendant’s vending activity were constitutionally protected activity, New York City’s licensing scheme was a permissible time, place, and manner restriction on it. -13- A. Defendant contends that his vending activity was entitled to the protection of the First Amendment’s free speech clause and New York’s counterpart. In fact, as the Appellate Term and the trial court determined, defendant’s vending activity was not sufficiently expressive to warrant protection under the federal or New York constitutions. As a preliminary matter, the resolution of whether a vendor’s activity was sufficiently expressive to merit free speech protection is a mixed question of fact and law. Such a determination rests heavily on facts. Indeed, defendant, in pressing his claim that his vending was protected activity, complains about the lower courts’ treatment of the facts, including, for example, that the courts gave too little credit to his own testimony about his vending activity (See DB: 20-21). Determinations that “involve questions of fact or mixed questions of law and fact, generally are beyond the review powers of this [C]ourt.” People v. McRay, 51 N.Y.2d 594, 601 (1980). This Court’s “review is limited to deciding whether the Appellate [Term]’s finding is supported by a basis in the record.” See Matter of Jimmy D., 15 N.Y.3d 417, 423 (2010). Clearly, the Appellate Term’s determination that defendant’s vending activity was not sufficiently expressive to be protected by the First Amendment had a basis in the record and was consonant with the law. The First Amendment demands that “Congress shall make no law … abridging the freedom of speech….” U.S. Const. Amend. I. By way of the Fourteenth -14- Amendment, the right to free speech binds state and local lawmakers as well. See, e.g., Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring). In addition, the New York State Constitution guarantees that “[e]very citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press….” New York Const. Art. I, § 8. In Mastrovincenzo, the Second Circuit reviewed a First Amendment challenge to New York City’s general vending law by street vendors selling merchandise having both expressive and non-expressive elements, “clothing painted with graffiti.” Mastrovincenzo, 435 F.3d at 81-82, 95. In considering whether the vendors’ activity deserved First Amendment protection, the court looked to the dominant purpose of the merchandise. See Mastrovincenzo, 435 F.3d at 95. The Second Circuit concluded that the painted clothing was “predominantly expressive” and thus required First Amendment protection. Mastrovincenzo, 435 F.3d at 91. In reaching that conclusion, the court set forth general standards by which to evaluate whether an item is sufficiently expressive to merit protection. First and foremost, the Mastrovincenzo court noted that “objective considerations” – and not the self-interested assurance of the purported artist – should guide a court’s inquiry into whether an item conveys such expressiveness as to “merit First Amendment protection.” Mastrovincenzo, 435 F.3d at 94. It also is not -15- enough that the item under analysis “could be objectively understood to have any expressive or communicative elements,” since, for example, “incidental artistic elements” like designs on the back of playing cards would not trigger the First Amendment. Id. (citing People v. Saul, 3 Misc.3d 260 [Crim. Ct. N.Y. Co. 2004]) (emphasis in original). Instead, a court must be concerned with “whether a vendor is primarily engaged in an act of self-expression.” Mastrovincenzo, 435 F.3d at 94 (emphasis added). Thus, even when a court is satisfied that an item exhibits some “expressive elements,” that alone would not entitle a vendor of such an item to First Amendment protection. The court must “consider whether that item also has a common non- expressive purpose or utility.” Mastrovincenzo, 435 F.3d at 95. When an item’s “dominant purpose” is not expressive, “it will be classified as a mere commercial good, the sale of which likely falls outside the scope of the First Amendment.” Id. Conversely, when the item’s purpose is predominantly expressive, its sale is “more likely” to deserve First Amendment protection. Id. Expressive items with no apparent useful function would thus be more likely to be protected than expressive items designed principally for a utilitarian purpose. Id. More pointedly, the “ultimate” goal is to determine whether a vendor was “genuinely and primarily engaged in artistic self- expression or whether the sale of such goods is instead a chiefly commercial exercise,” as this is what would inform the “larger inquiry” of whether a vendor was “engaged in protected speech.” Id. at 91. -16- Mastrovincenzo declined “to set forth an exhaustive list of all possible factors” bearing on an item’s dominant purpose, but did offer several specific measures to consider. Id. at 96. For instance, courts may consider the price at which an item is being offered. That is, “courts may gauge the relative importance of the items’ expressive character by comparing the prices charged for the decorated goods with the prices charged for similar non-decorated goods.” Id. A “substantial premium for the decorated work” would support a “claim that the items have a dominant expressive purpose.” But, if the items are “sold at rates indistinguishable” from their non-adorned counterparts, those items “might well be classified as ‘mere commercial goods’ because their expressive character is not dominant.” Id. Additional measures of an item’s dominant purpose are the “complexity of the design and the effort involved in completing it.” Id. Applying the dominant purpose test to the graffiti-painted clothing at issue in Mastronvincenzo, the Second Circuit concluded that the dominant purpose of those items was expressive. Id. 97. The court noted that each item of clothing was “an individual work of art customized on the spot according to the client’s request, and include[d] such things as names, characters, and pictures.” Id. at 86 (internal quotations omitted). In addition, the vendors “charge[d] different fees for their artwork based solely on the complexity and difficulty of the art they produce[d] and [did] not charge anything for the items of clothing themselves.” Id. (internal quotations and alterations omitted). More particularly, the vendors did not sell “blank, -17- unadorned hats,” and charged “between $10 and $100 per hat based on the complexity of the design and the effort involved in completing it.” Id. at 96 (internal quotations and alterations omitted). All of those factors led the court to find that the vendors’ activity warranted First Amendment protection. The “dominant purpose test” set forth in Mastrovincenzo has been widely followed by New York’s lower courts to decide whether a commercial activity merits free speech protection. See People v. Silva-Almodovar, -- N.Y.S.2d --, 2012 WL 3892869 (N.Y. Sup. App. Term Sept. 7, 2012) (at pleading stage, denying defendant’s motion to dismiss unlicensed vending charge when record did not show that dominant purpose of “decorative rocks” was expressive); People v. Larsen, 29 Misc.3d 423 (condoms in wrappers with political messages had “dominant non-expressive purpose”); People v. Ndiaye, 26 Misc.3d 212 (suggesting, without deciding, that dominant purpose of costume jewelry was not expressive); People v. Franqui, 26 Misc.3d 313 (Crim. Ct. N.Y. Co. 2009) (costume jewelry not presumptively protected under dominant purpose test); People v. Lee, 19 Misc.3d 791 (Crim. Ct. N.Y. Co. 2008) (dominant purpose of purely decorative tiles was expressive).5 5 Federal and state courts elsewhere have also looked to Mastrovincenzo in deciding whether a commercial activity merits free speech protection. See State v. Chepilko, 965 A.2d 190, 200 (N.J. Super. A.D. 2009) (“defendant’s simple snapshots of persons he approached on the boardwalk” did not serve “predominantly expressive purposes”); Hunt v. City of Los Angeles, 601 F.Supp.2d 1158, 1181 (C.D. Cal. 2009) (“predominant purpose” of incense sales was “commercial,” not expressive); Kleinman v. City of San Marcos, 597 F.3d 323, 327 (5th Cir. (Continued…) -18- Notably, although defendant contends that “[t]he New York Courts have taken an approach to free speech issues more protective than the federal Constitution” (DB: 15), defendant did not rely on New York’s free speech right in the trial court. Therefore, this argument is not preserved. See CPL §470.35(1); People v. Rosen, 96 N.Y.2d 329, 335 (2001). Moreover, defendant has cited no authority for extending broader protection under New York law than that afforded under the federal Constitution for the vending of items mixing utilitarian and expressive elements.6 In fact, this Court has noted that “public forum analysis under article I, §8 of [New York’s] State Constitution mirrors [the] federal standard.” People v. Barton, 8 N.Y.3d 70, 76 (2006). Thus, the lower courts were correct to apply Mastrovincenzo’s dominant purpose test to determine whether defendant’s vending of t-shirts warranted free- speech protection. One more point of law should be noted. A vendor asserting that the First Amendment protects his activity bears the burden of showing that his vending activity was sufficiently expressive to merit that protection. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984) (“it is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment ______________________ (…Continued) 2010) (decorated junked vehicle used to attract customers was predominantly utilitarian, not expressive). 6 Instead, defendant cites cases involving the sale or distribution of books, movies, or artwork (DB: 16-17) – i.e., the purer forms of expression. See page 25, n. 12, infra. -19- even applies”); Mastrovincenzo, 435 F.3d at 93 (in examining whether First Amendment protects sale of goods containing communicative elements, treating those goods as “potentially expressive,” but not “presumptively entitled to First Amendment protection”) (emphasis in original); Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 (2nd Cir. 2004) (“The party asserting that its conduct is expressive bears the burden of demonstrating that the First Amendment applies,” and “that party must advance more than a mere ‘plausible contention’ that its conduct is expressive”) (quoting Clark, 468 U.S. at 293 n.5).7 Judged by these principles, the courts below each properly concluded that the dominant purpose of defendant’s t-shirts was to serve as clothing, not as expression. Importantly, defendant was selling his t-shirts for a uniform price of $20 each, a price more indicative of their being ordinary clothing than works of art. Cf. Mastrovincenzo, 435 F.3d at 96 (finding predominantly expressive purpose of baseball caps with prices ranging up to $100 each, “based on the complexity of the design and effort involved in completing it”). As the Appellate Term noted, $20 was a “modest selling price,” indicating that the shirts’ “dominant purpose was utilitarian, and not expressive” (A. 3). Moreover, as the Appellate Term also indicated, defendant displayed the shirts 7 Moreover, under New York’s Criminal Procedure Law, a defendant seeking to raise a First Amendment challenge to his prosecution for violation of the general vending law can move to dismiss the charge against him on the ground that “[t]here exists some…legal impediment to conviction of the defendant for the offense charged.” See CPL §170.30(1)(f). On such a motion, the defendant bears the burden of proving by a preponderance of the evidence any essential facts that are in dispute. CPL §§170.45; 210.45. -20- folded and in rows (A. 3).8 In addition, there was no evidence that the designs on the t-shirts varied in complexity or difficulty of production. See Mastrovincenzo, 435 F.3d at 96. Taken together, the proof supported the conclusion below that the dominant purpose of the t-shirts was utilitarian, and, therefore, that defendant’s vending of them did not merit free-speech protection. To be sure, defendant claims that expression was the dominant purpose of his t-shirts. In support of that claim, defendant points to his own trial testimony that his shirts included designs that were “centered on current events” and were “social, political, and religious in nature.” And, defendant adds that people had asked him to “sign and frame” the t-shirts (DB: 20-21). But, as reflected in Mastrovincenzo, the courts below were not bound to accept defendant’s self-serving suggestion that his principal purpose in creating and selling t-shirts was expressive rather than commercial. After all, defendant had a “strong incentive here to emphasize his artistic motivations.” See Mastrovincenzo, 435 F.3d at 94. “[T]he most reliable means of determining whether a vendor is primarily engaged in an act of self-expression is not to consult the vendor himself…but rather to examine the expressive content of the materials being sold.” Id. Here, the trial court had the opportunity to examine the t-shirts. And, based on that 8 Specifically, when asked whether the t-shirts were “stacked on top of each other,” the officer answered that the t-shirts were “folded neatly” and “arranged next to each other,” “approximately five wide by maybe three long” (Faranda: A. 45). The Appellate Term summarized that testimony by stating that the t-shirts were “folded and in piles” (A. 3). -21- examination and the objective facts proved at trial, the court determined that the t- shirts’ dominant purpose was to serve as clothing. See id. at 96.9 Furthermore, although defendant testified that he also created canvases and paper prints, he was not selling those items when the police officer observed him in Union Square on June 6, 2010. And, although defendant testified that some people had framed t-shirts he had made, the decision of a few unidentified persons to frame certain of defendant’s t-shirts did not alter the essentially utilitarian nature of the t- shirts defendant was selling at the time of his arrest.10 It bears emphasis that defendant had not displayed his t-shirts in frames in Union Square that day. Instead, 9 As noted previously, the People were informed by the police property clerk’s office that the t-shirts, which constituted People’s Exhibit 1 at trial, were destroyed some time after trial. While defendant argued below that the unavailability of the t-shirts deprived him of meaningful appellate review, he has not renewed that argument before this Court. And, indeed, that argument was meritless. Notably, when defendant raised his free-speech challenge in the trial court, he placed virtually no reliance on the particular t-shirts introduced at trial by the People. Rather, he introduced, as Defense Exhibit A, four drawings that he claimed exemplified the kinds of designs he put on t-shirts. As defendant’s appellate counsel advised this office, the drawings constituting Defense Exhibit A can no longer be found. Given these circumstances, defendant would be hard pressed to complain that the loss of People’s Exhibit 1 has unfairly disadvantaged him. See People v. Yavru-Sakuk, 98 N.Y.2d 56, 60 (2002) (lost exhibit had no “substantial importance” to the issues defendant raised below, and was “essentially collateral” to them). In any event, even if the exhibit had some bearing on whether the t-shirts had a dominant expressive purpose, defendant still was not unfairly prejudiced by its loss. As discussed hereafter in the text, the vending law is a content-neutral time, place, and manner restriction that passes the intermediate scrutiny test. Thus, application of the vending law to defendant’s vending activity was lawful even if defendant’s activity was predominantly expressive. 10 Indeed, even defendant is very tentative in arguing that the fact that some people framed his t-shirts was evidence of the t-shirts’ purported expressiveness. Defendant argues in his brief, “the fact that [defendant] stated that his tee-shirts might be framed as works of art would seem to suggest that they might not necessarily be purchased for their utility at all” (DB: 26, n.6). -22- defendant had arranged them and priced them as ordinary t-shirts. For the reasons cited above, the dominant purpose of those t-shirts was utilitarian. Thus, defendant is flatly wrong when he argues that the courts below “fail[ed] properly to apply the Mastrovincenzo balancing test,” and instead applied a “per se rule that the mere fact that the image ends up on a piece of clothing removes it from constitutional protection” (DB: 21). In fact, it is defendant who suggests a per se rule – that clothing is expressive if the creator or vendor says it is (See DB: 20-21). 11 In that vein, defendant suggests that Mastrovincenzo’s dominant purpose test is “patently deficient” and that this Court should not follow it. Because defendant argued below that Mastrovincenzo’s dominant purpose test was the correct test for whether a vendor’s activity warranted free-speech protection (A. 15), his current 11 Defendant is wrong to suggest that in People v. Larsen, 29 Misc.3d 423, the court observed that the sale of t-shirts is always protected by the First Amendment (DB: 21). In Larsen, the court rejected the defendants’ claim that the prosecution of the defendants for unlicensed selling of condoms in political message-bearing wrappers violated the First Amendment. In reaching that result, the court concluded that the condoms, despite those messages, had a “dominant non-expressive purpose,” in contrast with “buttons – along with bumper stickers, flags, picket signs, and yard signs.” Id. at 434 (emphasis in original). The court continued: “Similarly, a T-shirt serves [as] a blank canvas on which to affix a political message, with the ultimate purpose being just as much to convey that message to others as to clothe the wearer. The same cannot be said of a condom.” Id. Plainly, in that dicta, the Larsen court was simply recognizing that, in some circumstances, a t-shirt bearing a political message could have expression as its dominant purpose. However, if, as defendant contends, the Larsen court meant to suggest by that dicta that any t-shirt bearing a drawing or design is predominantly expressive, the dicta is at odds with Mastrovincenzo and should be given no weight. See Coleman v. City of Mesa, 284 P.3d 863, 870-71 (Ariz. 2012) (declining to apply dominant purpose test to tattoo artist; instead treating tattooing as “purely expressive activity” because “tattoos are more like paintings than t-shirts in terms of their general expressive content”). -23- argument to the contrary is unpreserved. See People v. Angelo, 88 N.Y.2d 217, 222 (1996). In any event, defendant’s position is meritless. In attacking Mastrovincenzo’s dominant purpose test, defendant derides the task of deciphering the dominant purpose of an item as a “fool’s errand” (DB: 26). Defendant argues, for example, that there is no principled way to distinguish between a framed t-shirt and an unframed one, because the unframed t-shirt is still “frameable” (DB: 26, n.6). But there are real distinctions between predominantly utilitarian and predominantly expressive wares, and courts are capable of drawing them. As the court in Mastrovincenzo observed, courts have “prove[d] capable of making such determinations” as to “when an item’s expressive purpose should be considered ‘dominant,’” in the same “way that courts have dealt on a case-by-case basis with difficult line-drawing problems in other First Amendment contexts.” Mastrovincenzo, 435 F.3d at 95-96. Of course, courts deal with difficult line-drawing problems in many contexts. See, e.g., 677 New Loudon Corp. v. New York Tax Appeals Tribunal, -- N.Y.3d --, 2012 WL 5199386 (Oct. 23, 2012) (holding that exotic pole dancing performances are subject to sales tax, whereas other dance performances are not). Moreover, defendant’s argument, if accepted, would allow vendors to usurp from courts the role of deciding whether a commercial activity is also protected speech. After all, if courts were powerless to decide what qualified for First Amendment protection, then the First Amendment would protect “any object bearing -24- a floral pattern or painted design on its exterior, such as a bicycle, an item of stereo equipment, a garbage can, or a raincoat.” See Mastrovincenzo, 435 F.3d at 95 (emphasis in original). For that matter, under defendant’s view, a vendor could claim that the absence of a painted design was what made an item “art,” and a court would be powerless to say otherwise. In short, the courts below properly determined that the t-shirts defendant was selling were predominantly non-expressive. Indeed, defendant failed to carry his burden of showing the contrary, and the courts’ determination is supported by a basis in the record. Therefore, this Court should uphold the lower courts’ ruling that, under the dominant purpose test set forth in Mastrovincenzo, defendant’s t-shirt vending did not merit free speech protection under the First Amendment or New York law. B. Even if defendant’s t-shirt vending merited free speech protection, however, the prosecution of defendant pursuant to New York City’s general vending law did not violate defendant’s rights because that law constituted a permissible time, place and manner restriction on that activity. As the Appellate Term held, because the vending law “leaves open to [defendant] ‘ample alternative channels of communication,’ its enforcement here does not violate his First Amendment rights.” People v. Lam, 34 Misc.3d at 130(A) (quoting Mastrovincenzo, 435 F.3d at 100-02). Indeed, in Mastrovincenzo, on which the Appellate Term relied, the Second Circuit concluded after careful analysis that the general vending law imposed a reasonable -25- time, place, and manner restriction on street vending of merchandise that was protected by the First Amendment. Id. at 100. To the extent that defendant is contending that the law did not pass muster under the New York Constitution, that claim is not preserved for review, as defendant did not make it below. See CPL §470.35(1); People v. Rosen, 96 N.Y.2d 329, 335 (2001). In any event, the law also constitutes a permissible restriction on such activity under New York law. Indeed, as previously noted, when it comes to analyzing content- neutral regulations of time, place, and manner of expression, this Court has stated that “public forum analysis under article I, §8 of [New York’s] State Constitution mirrors [the] federal standard.” People v. Barton, 8 N.Y.3d at 76 (upholding Rochester ordinance limiting aggressive panhandling); Matter of Rogers v. New York City Tr. Auth., 89 N.Y.2d 692 (1997) (applying federal precedents to uphold restrictions on subway-platform newspaper sales).12 In short, New York law mirrors First Amendment law with regard to the test that is applied to content-neutral regulations of protected activities, at least 12 To be sure, New York has “recognized that matters of free expression in books, movies and the arts generally are particularly suited to resolution as a matter of State common law and State constitutional law,” and that New York’s courts may “supplement[ ]” minimum federal standards “to meet local needs and expectations.” Immuno AG v. Moor- Jankowski, 77 N.Y.2d 235, 248 (1991). By the same token, this Court has observed that “commercial sales activity,” such as the sale of a political organization’s newspaper, is subject to greater regulation than purely expressive activity, such as “leafletting.” Matter of Rogers v. New York City Tr. Auth., 89 N.Y.2d at 700. Defendant advances no authority suggesting that New York law extends more protection than the federal Constitution to vendors of items that do not constitute pure forms of expression. -26- those involving non-pure forms of expression. And, the general vending law, as applied to defendant’s t-shirt vending, meets that test. When a regulation of expressive activity is “not based on content,” “intermediate scrutiny” is the appropriate standard to determine whether the regulation is permissible under the First Amendment. Mastrovincenzo, 435 F.3d at 98; see People v. Barton, 8 N.Y.3d at 76-77 (articulating same test as was applied in Mastrovincenzo); see also Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2723 (2010); Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180, 185 (1997). Under intermediate scrutiny, a content-neutral regulation may permissibly restrict the time, place or manner of protected speech in a public forum, provided that the restriction is “narrowly tailored to serve a significant governmental interest” and “leave[s] open ample alternative channels for communication.” Clark, 468 U.S. at 293; see also Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Marcavage v. City of New York, 689 F.3d 98, 104 (2nd Cir. 2012); Barton, 8 N.Y.3d at 76. To begin, it is easy to see that the general vending law is content neutral, and defendant does not argue otherwise. The vending law in no way seeks to censor any message sought to be conveyed by the vendors subjected to the law. The law regulates only the act of vending in a public place; it does not concern itself at all with the content of any message the vendors intend to convey. See Ward, 491 U.S. at 791 (“Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.”) (emphasis and -27- internal quotation marks omitted); Mastrovincenzo, 435 F.3d at 99 (“New York City’s licensing requirement applies across the board to all non-exempt vendors”). The general vending law also is intended “to serve a significant governmental interest.” New York City, like any municipality, has a significant interest in keeping its streets free of excessive congestion. See, e.g., Heffron v. Intl. Socy. for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981) (“As a general matter … a State’s interest in protecting the ‘safety and convenience’ of persons using a public forum is a valid governmental objective.”) (internal citations omitted). New York City, in particular, faces serious congestion problems threatening the safety and convenience of the millions of people that travel through it each day. Marcavage, 689 F.3d at 104-05 (New York City has significant interest in controlling congestion in city of “millions of residents, visitors, and workers”); Mastrovincenzo, 435 F.3d at 100 (same). As the City Council has found, “the public health, safety and welfare are threatened by the unfettered use of city streets for commercial activity by unlicensed, and therefore illegal, general vendors.” N.Y.C. Local Law No. 40-1988, §1; see also N.Y.C. Local Law No. 50-1979, §1 (“the presence of general vendors in certain parts of the city has caused serious congestion on the streets and sidewalks, preventing the regular flow of pedestrian and vehicular traffic, forcing pedestrians off the sidewalk, and thereby creating the increased potential for automobile and other vehicular accidents and posing an extremely serious threat to the health, safety, and well-being of citizens of, and visitors to, the city”). -28- Next, the general vending law is narrowly tailored to address New York City’s interest in reducing congestion. To meet the narrow tailoring requirement, the regulation need not be “the least restrictive or least intrusive means of serving the statutory goal.” Hill v. Colorado, 530 U.S. 703, 726 (2000); see Vincenty, 476 F.3d at 84- 85. Rather, that requirement will be met if the regulation “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 [1985]). The regulation should “focus[ ] on the source of the evils the city seeks to eliminate … and eliminate[ ] them without at the same time banning or significantly restricting a substantial quantity of speech that does not create the same evils.” Vincenty v. Bloomberg, 476 F.3d 74, 84-85 (2nd Cir. 2007) (quoting Ward, 491 U.S. at 799 n.7). As the Second Circuit concluded in Mastrovincenzo, the general vending law is narrowly tailored to serve New York City’s governmental interest in controlling urban congestion, as that goal “would be achieved less effectively absent the regulation.” Mastrovincenzo, 435 F.3d at 100 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985) (internal quotations omitted); N.Y.C. Local Law No. 50-1979, § 1 (“a limit on the total number of general vendor licenses should be established, because the business of general vending is intimately connected with problems of congestion on streets and sidewalks, and because an increase in the number of general vendors would worsen those conditions”). Moreover, as noted, the law expressly excepts from its reach unlicensed vending of “newspapers, periodicals, books, pamphlets or other -29- similar written material.” And, effectively, the general vending law is even more narrowly tailored given the City’s consent to the Bery injunction, which permits vendors of paintings, photographs, prints, and sculptures to sell their presumptively expressive artistic wares in public without a license. Thus, the general vending law focuses on the “evil” that the City seeks to eliminate without significantly restraining a substantial quantity of expression that does not create such evil. Finally, the General Vending Law leaves open ample alternative channels of communication, Mastrovincenzo, 435 F.3d at 101-102, even if those channels do not permit defendant to express himself “in precisely the same manner” as without the regulation, Connection Distrib. Co. v. Reno, 154 F.3d 281, 293 (6th Cir. 1998). Although defendant cannot sell his t-shirts on city streets and in parks, defendant remains free to create his artistic t-shirts, and to distribute by other means those t-shirts and any messages they might be intended to convey. For example, he remains free to give his t-shirts away on public streets without selling them, see Mastrovincenzo, 435 F.3d at 101, or to sell his t-shirts at galleries and trade shows, in his home, on the internet, or virtually anywhere but on the crowded streets of the City.13 And in that latter regard, defendant could distribute flyers with photos of his t-shirts, or display a sign with 13 Defendant is correct that the mere fact that he was selling his wares, and not distributing them for free, does not by itself diminish his claim to First Amendment protection (DB: 29). See Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5 (1988); Bery, 97 F.3d at 695-96. However, that does not mean that distributing them for free is not a reasonable available alternative for communicating his messages. See Mastrovincenzo, 435 F.3d at 101. -30- samples of his t-shirts, and include information about where the public can purchase those t-shirts. He could even legally sell his wares on those public streets and inside parks by entering into commission agreements with licensed vendors. See Mastrovincenzo, 435 F. 3d at 101; N.Y.C. Admin. Code §20-453. Moreover, according to defendant’s own testimony, he put the same designs on canvases, prints, and t- shirts (A. 55). Under the Bery injunction, defendant may sell his canvases and prints without a license on the streets, and in the public parks, including at Union Square (see DB: 30).14 In short, the law “in no way precludes [defendant] from reaching public audiences” with whatever message might be conveyed through his t-shirts, even at the specific venues where a license would be required to sell them. Id. at 101. Defendant counters that there were no adequate alternatives to selling his t- shirts in Union Square Park because the “medium” and the “forum” were part of the message (DB: 30).15 However, the record does not support that claim. Defendant testified at trial that he created drawings on a computer and then put them on 14 To the extent that defendant complains that the the number of general vending licenses is too limited (see DB: 23-24), defendant did not raise this argument below in support of his First Amendment challenge, making it unpreserved. Furthermore, the record was not developed with regard to such a claim. See People v. Kinchen, 60 N.Y.2d 772 (1983). 15 In the trial court, defendant claimed in conclusory fashion that the forum was part of the message (A. 16). Regarding the mediums he used, however, he noted only that he employed various kinds of mediums, including canvases, prints, and t-shirts, and that t-shirts were essentially a kind of canvas (A. 11, A. 63). Defendant did not argue that his choice of medium was “part of the message.” That contention is therefore unpreserved. See People v. Coleman, 56 N.Y.2d 269 (1982) (First Amendment claim not preserved where defendant did not raise it below). -31- canvases, prints, and t-shirts. And, he argued that t-shirts were a kind of “canvas.” But, he never testified or otherwise explained below how his medium was “part of the message.” Even now, he does not venture an explanation. As for his choice of forum, in the trial court defendant stated in conclusory fashion that it was part of his message (A. 16). However, he did not explain how the forum affected his message. Nor does he now offer an explanation. In the absence of any record to support his claim that the medium and forum were part of the message, that claim should be rejected. And, clearly, a defendant cannot evade enforcement of an otherwise permissible time, place and manner restriction simply by asserting that the time, place or manner of his allegedly expressive activity was part of his message. In any event, as noted, so long as he did not offer to sell them, defendant could have distributed the t-shirts or displayed them in Union Square Park. Defendant also asserts that enforcement of the general vending law against him was unnecessary to eliminate street congestion because the City had alternative “regulatory tools” to prevent him from “imped[ing] traffic” (DB: 27-28). For example, defendant cites Administrative Code §20-465, which, among other things, prohibits a vendor from “occupy[ing] more than eight linear feet of public space parallel to the curb,” and “vend[ing] within any bus stop or taxi stand.” N.Y.C. Admin. Code §20- 465(a), (e). But New York City obviously enacted §20-465 because existing regulations were inadequate to maintain clear paths in those especially heavily-trafficked areas. That regulation does not reduce congestion on the streets and parks more generally. -32- In any event, as already discussed, the vending law does not have to be the least restrictive alternative in order to pass intermediate scrutiny. See Hill v. Colorado, 530 U.S. at 726. Defendant also argues that he was “not selling his tee-shirts in the streets or even on the sidewalk,” but “was selling them in a park large enough to accommodate significant activity and traffic” (DB: 27). Defendant’s argument mistakenly assumes that New York City has a lesser interest in keeping its parks free from congestion than it does for its streets. To the contrary, New York City’s parks serve as sanctuaries from the bustling streets that surround them. However, without regulation, the parks would likely be overrun with vendors.16 That explains why New York City has restricted vending in its parks even more stringently than on its streets. See N.Y.C. Admin. Code §20-465(j) (Requiring general vendors wishing to vend within New 16 Less than two weeks after defendant’s arrest, the Commissioner of the New York City Department of Parks reported that, “[b]ecause Union Square Park is one of the City’s most popular destinations, despite its relatively modest size,” the Department faces “particular challenges” “when seeking to address undue congestion” there. Thus, the Department has designated a limited number of specific locations for expressive matter vendors within Union Square Park, “allowing them to continue plying their wares while not otherwise crowding out other park uses and users. Other areas of the park, however, are reserved for other park uses, such as passive recreation, musical performances, and other park activities.” The City Record, June 18, 2010. Apparently, congestion has always been a serious concern in that location. In fact, the area that became Union Square Park was originally set aside as an “opening for the benefit of fresh air” amid “the union of so many large roads.” See “Remarks of the Commissioners for Laying Out Streets and Roads in the City of New York, Under the Act of April 3, 1807,” quoted in Bridges, Map of the City of New York and Island of Manhattan With Explanatory Remarks and References, New York: William Bridges (1811). -33- York City parks, including Union Square Park, to obtain a general vendor’s license and written authorization from the Parks Commissioner); N.Y.C. Rules & Regs., Tit. 56, §1-105(b)(1)-(3) (limiting vendors, even of “expressive matter,” to “specifically designated spots identified by the [Parks] Commissioner”). In short, assuming that defendant’s t-shirts were so expressive that they entitled him to constitutional protection for selling them, the general vending law passes muster under the New York and federal constitutions because it is content neutral, narrowly tailored to secure the City’s substantial interest in preventing congested streets and parks, and allows for alternative channels of communication. There was no constitutional violation in the application of that law here. * * * Defendant’s t-shirt vending was not entitled to free speech protection, because the dominant purpose of the t-shirts was utilitarian, not expression. And, even if defendant’s t-shirt vending were entitled to free speech protection, the general vending law was a permissible restriction on that activity. -34- CONCLUSION The order of the Appellate Term should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: ANDREW E. SEEWALD Assistant District Attorney ELEANOR J. OSTROW ANDREW E. SEEWALD Assistant District Attorneys Of Counsel November 29, 2012 PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 8737, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2010. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.