People v. Andujar

52 Misc.3d 57

36 N.Y.S.3d 770

2016 N.Y. Slip Op. 26207

The PEOPLE of the State of New York, Respondent,

v.Jose ANDUJAR, Defendant–Appellant.

Supreme Court, Appellate Term, First Department, New York.

June 29, 2016.

Seymour W. James, Jr., The Legal Aid Society, New York City (Paul Wiener of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (David P. Stromes of counsel), for respondent.

PRESENT: HUNTER, JR., J.P., SCHOENFELD, SHULMAN, JJ.

PER CURIAM.

Judgment of conviction (Frank P. Nervo, J., on dismissal motion; Anthony J. Ferrara J., at trial and sentence), rendered October 26, 2011, affirmed.

Defendant's conviction of unlicensed general vending (see Administrative Code of City of N.Y. 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 condoms on a street corner near Times Square.

We reject defendant's contention that he was engaged in constitutionally protected speech, exempt from the licensing requirements of the general vending law, because the condoms were contained in packages containing political messages (see People v. Larsen, 29 Misc.3d 423, 906 N.Y.S.2d 709 [Crim.Ct., N.Y. County 2010] ).

In this regard, the condoms offered for sale by defendant were typical name brand “Lifestyles” or “Crown” condoms, each one individually sealed in its own plastic wrapper and then placed inside a cardboard envelope or sleeve. Each sleeve depicted the image of a public figure, such as President Obama, Senator John McCain, and Governor Sarah Palin, and bore a humorous, innuendo-laden slogan. For instance, one slogan on the condom package bearing President Obama's image read “The ultimate stimulus package,” while one on the package with Governor Palin's image read “As thin as her resume.”¹

On these facts, Criminal Court was warranted in concluding that the condoms were commercial goods whose dominant purpose was utilitarian—for use as a prophylactic device—and not expressive (see People v. Lam, 21 N.Y.3d 958, 959–960, 972 N.Y.S.2d 166, 995 N.E.2d 128 [2013] ; Mastrovincenzo v. City of New York, 435 F.3d 78, 95–96 [2d Cir.2006] ). Defendant's clever marketing of the condoms, by linking them to current public figures and current public debates, does not entitle him to the constitutional protection afforded to noncommercial speech (see Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 475, 109 S.Ct. 3028, 106 L.Ed.2d 388 [1989] ; Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557, 563. n. 5, 100 S.Ct. 2343, 65 L.Ed.2d 341 [1980] [advertising which “links a product to a current public debate” is not entitled to the constitutional protection afforded noncommercial speech] ). Since the “speech” at issue herein was for advertising purposes, drew potential customers to a specific commercial enterprise or product, and was economically motivated, it was subject to greater regulation than other speech (see Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 67–68, 103 S.Ct. 2875, 77 L.Ed.2d 469 [1983] ), and therefore fell within the reach of the licensing requirements of the vending ordinance.

Nor can the condom sleeves be equated with the “newspapers, periodicals, books [and] pamphlets” specifically exempted from coverage by the terms of the vending ordinance (see People v. Howard, 45 Misc.3d 66, 68, 996 N.Y.S.2d 860 [2014], lv. denied 26 N.Y.3d 1109, 26 N.Y.S.3d 768, 47 N.E.3d 98 [2016] ; People v. Ndiaye, 26 Misc.3d 212, 887 N.Y.S.2d 832 [Crim.Ct., N.Y. County 2009] ).

Defendant's contention that the trial court improperly denied his request for a mistake of law charge is unavailing. Defendant requested that charge on the theory that he sold “Obama Condoms” without a license in reliance on a prior Criminal Court determination that the condoms fell within the written matter exception to the unlicensed general vending law (see People v. Andujar, 31 Misc.3d 757, 917 N.Y.S.2d 848 [Crim.Ct., N.Y. County 2011] )....