| People v Stephens |
| 2015 NY Slip Op 03991 [128 AD3d 1497] |
| May 8, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vHarvert Stephens, Also Known as Havert Stephens, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Robert P. Stamey, Corporation Counsel, Syracuse (Ann Magnarelli Alexander ofcounsel), for City of Syracuse, amicus curiae.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered October 26, 2011. The judgment convicted defendant, upon a nonjuryverdict, of criminal possession of a controlled substance in the third degree, criminalpossession of a controlled substance in the fifth degree and sound reproduction.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), criminal possession of a controlled substance in the fifthdegree (§ 220.06 [5]), and sound reproduction under the Syracuse NoiseControl Ordinance (Revised General Ordinances of City of Syracuse§ 40-16 [b] [hereafter, City Ordinance]). On August 24, 2010, defendant'svehicle was stopped by the police because his vehicle's stereo was allegedly operating atan extremely loud volume. As a result of the traffic stop, the police recovered an amountof crack cocaine from defendant's vehicle.
Defendant contends that the judgment should be reversed because the CityOrdinance is unconstitutionally vague, specifically concerning its definition of"unnecessary noise," and the police did not have probable cause to stop his vehicle. Wereject defendant's contention that the City Ordinance is unconstitutionally vague. Section40-16 (b), the subdivision under which defendant was convicted, provides that "[n]operson shall operate, play or permit the operation or playing of any . . .device which produces, reproduces or amplifies sound . . . [i]n such amanner as to create unnecessary noise at fifty (50) feet from such device, whenoperated in or on a motor vehicle on a public highway" (emphasis added). The term"unnecessary noise" is defined in section 40-3 (u) of the City Ordinance as "anyexcessive or unusually loud sound or any sound which either annoys, disturbs, injures orendangers the comfort, repose, health, peace or safety of a reasonable person of normalsensibilities." The City Ordinance also provides a nonexclusive list of 11 standards toconsider in determining whether noise is unnecessary (see id.).
Municipal ordinances "enjoy 'an exceedingly strong presumption ofconstitutionality' " (Cimato Bros. v Town of Pendleton, 270 AD2d 879,879 [2000], lv denied 95 NY2d 757 [2000], quoting Lighthouse Shores vTown of Islip, 41 NY2d 7, 11 [1976]), and such legislative enactments "are to beconstrued so as to avoid constitutional issues if such a construction is fairly possible"(FGL & L Prop. Corp. v City of Rye, 66 NY2d 111, 120 [1985]; seeMcKinney's Cons Laws of NY, Book 1, Statutes § 150). "Thevoid-for-vagueness doctrine embodies a 'rough idea of fairness' " (QuintardAssoc. v New York State Liq. Auth., 57 AD2d 462, 465 [1977], lv denied 42NY2d 805 [1977], [*2]appeal dismissed 42 NY2d973 [1977], quoting Colten v Kentucky, 407 US 104, 110 [1972]), and "animpermissibly vague ordinance is a violation of the due process of law" (Matter of Turner v Municipal CodeViolations Bur. of City of Rochester, 122 AD3d 1376, 1377 [2014]; seePeople v Stuart, 100 NY2d 412, 419 [2003]). In addressing such a challenge, courtsfirst "must determine whether the statute in question is sufficiently definite to give aperson of ordinary intelligence fair notice that his [or her] contemplated conduct isforbidden by the statute" (Stuart, 100 NY2d at 420 [internal quotation marksomitted]). "Second, the court must determine whether the enactment provides officialswith clear standards for enforcement" (id.; see People v New York Trap RockCorp., 57 NY2d 371, 378-379 [1982]).
Defendant contends that the City Ordinance is unconstitutionally vague because it issimilar to a different ordinance voided by the Court of Appeals in New York TrapRock Corp. We reject defendant's contention. The ordinance here, unlike that inNew York Trap Rock Corp., defines "unnecessary noise" with reference to anobjective standard of reasonableness rather than a subjective standard, and thus it is notunconstitutionally vague on that ground (see People v Bakolas, 59 NY2d 51,53-55 [1983]). Specifically, it defines "unnecessary noise" as noise that would offend "areasonable person of normal sensibilities" (City Ordinance § 40-3 [u]). Theordinance at issue in New York Trap Rock Corp., however, contained asubjective standard, which defined "unnecessary noise" as that which offends "a person"(see id. at 375). The subjective standard essentially permitted a conviction to "restsolely upon the 'malice or animosity of a cantankerous neighbor' . . . or'boiling point of a particular person[,]' . . . situations which are the product,not only of imprecise standards, but of no standard at all" (id. at 380). There is nosuch constitutional infirmity in the City Ordinance at issue here.
We further conclude that the City Ordinance is not unconstitutionally vague becausethe section under which defendant was convicted was tailored to a specificcontext—the creation of "unnecessary noise" beyond 50 feet of a motor vehicle ona public highway (City Ordinance § 40-16 [b]). In our view, "[w]hat isusual noise in the operation of a car [radio or other sound production device] has becomecommon knowledge . . . and any ordinary motorist should have no difficultyin ascertaining" whether the noise in question violates the applicable standard (Peoplev Byron, 17 NY2d 64, 67 [1966]; see People v Frie, 169 Misc 2d 407, 410[1996]). Based on the foregoing, we conclude that the ordinance in question was"sufficiently definite" to put defendant on notice that his conduct was forbidden, and thatit provided the police "with clear standards for enforcement" (Stuart, 100 NY2dat 420).
Defendant's First Amendment challenge to the City Ordinance is unpreserved for ourreview (see CPL 470.05 [2]), and we decline to exercise our power to addressthat challenge as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). Furthermore, we conclude that defense counsel's failure to make a FirstAmendment argument before the trial court did not constitute ineffective assistanceinasmuch as that " 'argument . . . ha[d] little or no chance ofsuccess' " (People vCaban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied3 NY3d 702 [2004]; seePeople v Bradberry, 68 AD3d 1688, 1691 [2009], lv denied 14 NY3d838 [2010]).
Finally, contrary to defendant's contention, we conclude that there was ampleevidence to support the court's determination that the police had probable cause toinitiate the traffic stop on the ground that defendant violated the City Ordinance (seegenerally People v Robinson, 97 NY2d 341, 349-350 [2001]).Present—Scudder, P.J., Smith, Sconiers, Whalen and DeJoseph, JJ.