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FENSTER v. LEARY

December 6, 1966

Charles FENSTER, Plaintiff,
v.
Howard R. LEARY, as Commissioner of Police of the City of New York, and Aaron E. Koota, as District Attorney of the County of Kings, Defendants



The opinion of the court was delivered by: TENNEY

TENNEY, District Judge:

On motion of plaintiff, a three-judge court has been convened pursuant to Title 28 U.S.C. § 2284 (1964). Plaintiff seeks an order enjoining the defendants from prosecuting him under subdivision 1 of Section 887 of the Code of Criminal Procedure of the State of New York, which plaintiff contends violates the fourteenth amendment by denying him due process of law, the equal protection of the laws, and by inflicting cruel and unusual punishment. He further contends that the statute is repugnant to the thirteenth amendment and denies him the privileges and immunities of citizens of the United States. Plaintiff also seeks a declaratory judgment that the statute is repugnant to the Constitution as already indicated, and a preliminary injunction pending the determination of this action.

 Defendants Leary and Koota, while taking no position on the alleged unconstitutionality of the statute we are considering, request this Court to apply the traditional doctrine of abstention and to decline to exercise jurisdiction. While it is clear that this Court has jurisdiction pursuant to Title 28 U.S.C. § 1343(3) (1964), and has the power to issue a declaratory judgment, Title 28 U.S.C. § 2201 (1964), for the reasons we shall state, we believe that the facts present a proper case for abstention, and accordingly the complaint will be dismissed.

 The New York statute under attack reads as follows:

 "Section 887. Who are vagrants

 The following persons are vagrants:

 
1. A person who, not having visible means to maintain himself, lives without employment."

 Under Section 892 of said Code of Criminal Procedure, a person found to be a vagrant may be committed to the penitentiary or county jail for a period not to exceed six months at hard labor. From the allegations of the complaint, it appears that plaintiff was arrested and charged with being a vagrant in violation of said statute on three occasions, viz., September 30, 1964, November 13, 1964, and December 11, 1964.

 On each of the first two occasions plaintiff was, on the day of arrest, acquitted on the ground that the prosecution failed to establish sufficient facts to support a conviction of the plaintiff under the statute.

 With respect to the third arrest, plaintiff commenced a proceeding in the nature of prohibition on December 13, 1964, in the Supreme Court of the State of New York, County of Kings. He sought a judgment against the Criminal Court of the City of New York prohibiting it from proceeding with his prosecution on the ground that § 887(1) was unconstitutional. A stay of the Criminal Court proceedings was granted, but on April 8, 1965, the Supreme Court dismissed plaintiff's petition (Fenster v. Criminal Court, 46 Misc.2d 179, 259 N.Y.S.2d 67). This dismissal was subsequently affirmed on October 25, 1965, by the Appellate Division of the Supreme Court, Second Judicial Department (24 A.D.2d 840, 263 N.Y.S.2d 1010 (mem.)).

 An appeal taken to the Court of Appeals of the State of New York was grounded on claims of constitutional violations; that Court, however, affirmed the judgment on March 24, 1966, on the sole ground that the denial was within the discretion of the lower court. The Court of Appeals expressly stated that it reached no other question (17 N.Y.2d 641, 269 N.Y.S.2d 139, 216 N.E.2d 342). A motion to reargue was denied by the Court on June 2, 1966, and on June 27, 1966, the charge against plaintiff proceeded to prosecution in the Criminal Court. Once again he was, on the same date, acquitted on the ground that the prosecution failed to establish sufficient facts to support a conviction under the statute.

 Plaintiff alleges that he was held in nighttime confinement, arraigned and subjected to the expense of furnishing bail and counsel fees. Plaintiff further alleges that he has been threatened with further arrests under said statute as recently as May of this year, and that he fears another arrest unless this Court affords him the relief requested herein.

 Defendant Leary is presently Commissioner of Police of the City of New York, and defendant Koota is the District Attorney of the County of Kings. Defendant Leary has filed an affidavit herein denying knowledge of any such threats having been made against plaintiff, and further stating that the Police have no intention of again arresting plaintiff as a vagrant.

 In Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), which has been called "the fountainhead of federal injunctions against state prosecutions", *fn1" the power of a federal court to enjoin a prosecution by a state official under a state statute unconstitutional on its face was upheld. "Since that decision, however, considerations of federalism have tempered the exercise of equitable power, for the Court has recognized that federal interference with a State's good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework." *fn2" Accordingly, such power will not be ...


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