[972 N.Y.S.2d 167] Steven Banks, Legal Aid Society, New York City (Martin M. Lucente of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Andrew E. Seewald and Eleanor J. Ostrow of counsel), for respondent.
[995 N.E.2d 129] The order of the Appellate Term should be affirmed.
Defendant was convicted of unlicensed general vending, in violation of section 20-453 of the Administrative Code of the City of New York, for selling T-shirts in Union Square Park without a vendor's license. He argues that his conviction should be vacated because the vending of T-shirts containing artistic images was constitutionally protected expression.
Addressing a similar issue, the Second Circuit found that the relevant inquiry is whether the vendor is " genuinely and primarily engaged in artistic self-expression or whether the sale of such goods is instead a chiefly commercial exercise" ( Mastrovincenzo v. City of New York, 435 F.3d 78, 91 [2d Cir.2006] ). The court recognized that certain items, including apparel, could simultaneously contain potentially expressive and non-expressive components and, in that situation, a reviewing court must determine which purpose— expression or utility— is dominant ( see Mastrovincenzo, 435 F.3d at 95).
" Where an object's dominant purpose is expressive, the vendor of such an object has a stronger claim to protection under the First Amendment; conversely, where an object has a dominant non-expressive purpose, it will be classified as a ‘ mere commercial good[ ],’ the sale of which likely falls outside the scope of the First Amendment" ( Mastrovincenzo, 435 F.3d at 95).
Although Criminal Court may have overemphasized the fact that the T-shirts can be worn as apparel, the Appellate Term reasonably found that their dominant purpose was utilitarian. That court considered, among other factors, the way in which the shirts were displayed and their low, uniform selling price in coming to the conclusion that the T-shirts were primarily
commercial goods. We are unable to determine that this conclusion was error as a matter of law.[*]
Since the dominant purpose here was not expressive, it is unnecessary to determine whether the statute leaves open ample alternative channels of communication.
SMITH, J. (dissenting).
But for the fact that the key evidence has been destroyed, this would be an interesting and important case. It raises the issue, considered by the Court of Appeals for the Second Circuit in [995 N.E.2d 130] [972 N.Y.S.2d 168] Bery v. City of New York, 97 F.3d 689 (2d Cir.1996) and Mastrovincenzo v. City of New York,435 F.3d 78 (2d Cir.2006), of ...