Brief at 6 n.3; Defendant's Brief at 8.) Accordingly, the Court will follow McNamara's guidance in interpreting 36 C.F.R. § 7.29(c), the regulation prohibiting public lewdness in the Gateway National Recreational Area.
The McNamara court, in an opinion joined by six judges as against only one dissenter, commenced its analysis of section 245.00 by noting that "in the context of this statute the phrase [public place] has no single readily ascertainable 'plain meaning.'" McNamara, 578 N.Y.S.2d at 478. Assessing both the language and structure of the statute, as well as its legislative history, the court found, as did Magistrate Judge Gold, that a defendant's intent is "irrelevant to determining what constitutes a 'public place'" under the statute. McNamara, 578 N.Y.S.2d at 480. Nevertheless, the court observed that since the term public place "has no cut-and-dried meaning," it is necessary to interpret it in a manner consistent with the purpose of the statute. The Court of Appeals then found that section 245.00, which is designated an "Offense Against Public Sensibilities," was enacted "'to prevent the open flouting of societal conventions,'" not to prohibit the acts of "'persons who desire privacy and who take reasonable measures to secure it.'" McNamara, 578 N.Y.S.2d at 481, (quoting New York Model Penal Code and Commentaries, part II, § 251.1, comment 2, at 452 (ALI 1980)). It is in this context that the McNamara court held that "the interior of a vehicle parked at a stated address is not itself a 'public place,' but it may become one under circumstances indicating that the car's interior is visible to a member of the passing public, and that the vehicle is situated in a place where it likely would be observed by such a person." McNamara, 578 N.Y.S.2d at 481. Under McNamara, therefore, a place is considered public "when the objective circumstances establish that the lewd acts committed there can and likely would be seen by the casual passerby." McNamara, 578 N.Y.S.2d at 482 (emphasis added).
The Court finds that the government failed as a matter of law to prove that the act occurred in a public place. Officer Nicoletti testified that in order to observe the defendant's activities, he had to walk off the bicycle path and "into the shrubs." (Tr. 10-11.) The only photograph entered into evidence depicts an area that, even in broad daylight, is dark and shrouded with shrubbery. (Defendant's Exhibit 2-H.) Moreover, John Doe's arrest took place, not in daylight, but at 8:45 on a Sunday evening. In this appellate posture, the Court is duty bound to construe the facts in the light most favorable to the government; the Court may not, however, fill in evidence that is not there.
Simply stated, there is nothing in the language of section 245, or in the McNamara court's construction of the statute, that suggests that the outdoors must always be a public place. While the policy and goals of section 245 invite expansive interpretation, there must be some basis in fact to support the conclusion that the activity "likely would be seen by the casual passerby." That evidence is lacking here. This incident occurred on an April night, in the off season, and in an area obscured by thick bushes. The arresting officer, hardly a casual passerby, was on patrol searching for evidence of homosexual behavior or drug activity
and yet he could not see the defendant and his companion until he left the path and penetrated the apparently dense shrubbery. While a reasonably secluded spot in the bushes will not provide any guarantee of a safe haven for those intent on outdoor sexual activity, the precise circumstances presented here do not permit a reasonable trier of fact to conclude that the activity in question occurred in a public place. Since this element of the offense was not proven, the conviction must be reversed.
The defendant's conviction is reversed. The matter is remanded to the magistrate judge, with an instruction to dismiss the charge.
Dated: Brooklyn, New York
October 4, 1994
RAYMOND J. DEARIE
United States District Judge