New York Supreme and/or Appellate Courts Appellate Term, First Department
December 23, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Defendant appeals from a 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), rendered September 16, 2010, after a non-jury trial, convicting him of unlicensed general vending, and imposing sentence.
People v Lam (Ray)
Decided on December 23, 2011
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
Judgment of conviction (Marc J. Whiten, J. on dismissal motion; Matthew A. Sciarrino, J. at trial and sentence), rendered September 16, 2010, affirmed.
Defendant's conviction of unlicensed general vending (see Administrative Code of City of NY § 20-453) was supported by legally sufficient evidence and was not against the weight of the evidence, which showed that defendant, without a license, offered for sale at least six tee shirts that he displayed on a table near Union Square Park.
We find unavailing defendant's contention that the expressive messages conveyed by the artistically decorated tee shirts constituted constitutionally protected speech and, so the argument goes, exempted him from the licensure requirements of the general vending ordinance. On this record and considering, among other factors, the manner in which defendant displayed the tee shirts -- folded and in piles -- and the uniform, modest selling price ($20 each) quoted by defendant to the undercover police officer, Criminal Court was warranted in concluding that defendant's wares were mere commercial goods whose dominant purpose was utilitarian, and not expressive (see and compare Mastrovincenzo v City of New York, 435 F3d 78, 95-96 [2d Cir 2006]). Moreover, since Administrative Code § 20-453 leaves open to plaintiff "ample alternative channels" of communication, its enforcement here does not violate his First Amendment rights (Mastrovincenzo, at 100-102).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 23, 2011
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