SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
April 29, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
NICHOLAS CAPPARELLI, APPELLANT
Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.; Gibson, P. J., concurs in the result.
Appeal from a judgment of the County Court of Madison County rendered July 25, 1967, upon a verdict convicting defendant of the crime of soliciting in a public place on behalf of another for immoral purposes. The record before us discloses that on numerous occasions the defendant procured customers for a prostitute and there is ample testimony to support the verdict of the jury. The only question the defendant raises on this appeal is the constitutionality of the statute. It is his contention that the words "solicit" and "immoral" do not adequately inform men subject to their penalties what acts it is their duty to avoid. Section 1148 of the Penal Law provides that: "Every person who lives wholly or in part on the earnings of prostitution committed by another, or who in any public place solicits on behalf of another for immoral purposes, is guilty of a misdemeanor. A person who lives with or is habitually in the company of a prostitute and has no visible means of support, shall be presumed to be living on the earnings of prostitution." The question to be resolved on this appeal is not whether the words "solicit" and "immoral" taken in the abstract are impermissibly vague and indefinite, but rather whether the verbiage of the whole statutory provision is sufficiently definite, clear and positive to give unequivocal warning to citizens of the rule which is to be obeyed. (People v. Byron, 17 N.Y.2d 64, 67; Trio Distr. Corp. v. City of Albany, 2 N.Y.2d 690, 696; People v. Grogan, 260 N. Y. 138, 145). It is our opinion that, in context, the provision adequately specifies the conduct which is prohibited to the end that an ordinary member of society may know how to comply with its requirements.
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