candyflip

Despite the People's virtual default on the constitutional issue,
we must construe a statute, which enjoys a presumption of
constitutionality, to uphold its constitutionality if a rational
[*3] basis can be found to do so (see, McKinney's Cons Laws of NY,
Book 1, Statutes, sec. 150c; People v Price, 33 NY2d 831 [defendant's
equal protection claim not addressed because statute was construed
to not apply]; Childs v Childs, 69 AD2d 406, 418-421).

Penal Law sec. 245.01, when originally enacted (L 1967, c 367, sec. 1),
"was aimed at discouraging ' topless' waitresses and their
promoters (see, Practice Commentary by Denzer and McQuillan,
McKinney's Cons Laws of N.Y., Book 39, Penal Law, sec. 245.01, p. 200)"
(People v Price, 33 NY2d 831, 832, supra). Considering the statute's
provenance, we held in Price that a woman walking along a street
wearing a fishnet, see-through pull-over blouse did not transgress
the statute and that it "should not be applied to the noncommercial,
perhaps accidental, and certainly not lewd, exposure alleged" (id.
at 832). Though the statute and the rationale for that decision are
different, we believe that underlying principle of People v Price
(supra) should be followed.

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n1 Contrary to the position of the concurrence (see concurring
opn, at 4), nothing in the Legislature's repeal and replacement of
former Penal Law sec. 245.01 (L 1983, ch 216), subsequent to our
decision in Price, affects the holding of Price or our analysis
here. The revised sec. 245.01 expanded the application of the former
statute and prohibited full nudity by males and females (see, People
v Hollman, 68 NY2d 202). In its definition of "private or intimate
parts" as including women's breasts, however, the revised statute
retained the same discriminatory infirmity which occasioned our
decision in Price. We find no basis in the revised statute or in the
statutory history for not giving effect to Price here (see, Bill
Jacket, L 1983, ch 216, Governor's Approval Memorandum).

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We, therefore, conclude that Penal Law sec. 245.01 is not
applicable to the conduct presented in these circumstances and that
the City Court was correct in dismissing the informations.

CONCURBY: TITONE

CONCUR: Titone, J. (concurring):

Citing the maxim that wherever possible statutes should be
construed so as to sustain their constitutionality (see, e.g.,
Matter of Sarah K., 66 NY2d 223, cert denied sub nom. Kosher v
Stamatis, 475 U.S. 1108; Loretto v Teleprompter Manhattan CATV
Corp., 58 NY2d 143), the Court bypasses appellants' equal protection
argument by holding that Penal Law sec. 245.01 simply does not apply
"in these circumstances." That maxim is unhelpful here, however,
since both the language and the history of Penal Law sec. 245.01
demonstrate quite clearly that the conduct with which appellants
were charged is precisely the type of behavior that the Legislature
intended to outlaw when it enacted Penal Law sec. 245.01. Thus,
appellants' constitutional equal protection claim cannot be avoided
and the only relevant legal maxim is the one that demands proof by
the State that a classification based on gender be substantially
related to the achievement of an [*5] important governmental
objective (e.g., Caban v Mohammed, 441 U.S. 380, 388, 393; People v
Liberta, 64 NY2d 152, 168). Since that standard has not been
satisfied here, I would hold that, as applied in these
circumstances, Penal Law sec. 245.01 is unconstitutional and, for that
reason, the charges against appellants should have been dismissed.

Appellants and the five other women who were arrested with them
were prosecuted for doing something that would have been
permissible, or at least not punishable under the penal laws, if
they had been men -- they removed their tops in a public park,
exposing their breasts in a manner that all agree was neither lewd
nor intended to annoy or harass. As a result of this conduct, which
was apparently part of an effort to dramatize their opposition to
the law, appellants were prosecuted under Penal Law sec. 245.01, which
provides that a person is guilty of the petty offense of "exposure"
when he or she "appears in a public place in such a manner that the
private or intimate parts of his [or her] body are unclothed or
exposed." The statute goes on to state that, for purposes of this
prohibition, "the private or intimate parts [*6] of a female
person shall include that portion of the breast which is below the
top of the areola." n1 The statute thus creates a clear gender-based
classification, triggering scrutiny under equal protection
principles (see, Craig v Boren, 429 U.S. 190).

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n1 Public exposure of a female's breast for the purposes of
breastfeeding infants or "entertaining or performing in a play,
exhibition, show or entertainment" is expressly excluded from the
statutory prohibition.

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The majority has attempted to short-circuit this equal protection
inquiry by holding that Penal Law sec. 245.01 is inapplicable to these
facts. However, apart from a cryptic reference to People v Price (33
NY2d 831), which the majority admits involved a different statute
and rationale, no explanation is offered as to why this facially
applicable statute should not be applied here or what specific
factor differentiates these circumstances from those in which the
statute was intended to apply.

Price is inapt in this context because [*7] it involved the
predecessor to the current Penal Law sec. 245.01 (L 1967, ch 367, sec. 1,
amended L 1970, ch 40, sec. 1, repealed L 1983, ch 216, sec. 1), which was
entitled "exposure of a female" and, as the majority acknowledges,
"was aimed at discouraging ' topless' waitresses and their
promoters" (People v Price, supra, at 832; see, Donnino, Practice
Commentary, McKinney's Consol Laws of NY, Book 39, Penal Law sec.
245.01, at 299-300). Given that purpose, it made sense for the Court
to hold in Price that the statute "should not be applied to the
noncommercial, perhaps accidental, and certainly not lewd, exposure
alleged" in that case (33 NY2d, at 832). n2

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n2 Significantly, the allegation in Price was that the defendant
had been observed on a public street wearing a fishnet pullover
which left portions of her breasts visible, prompting the Court to
observe that, absent certain conditions, "legislation may not
control the manner of dress" (33 NY2d, at 832). That consideration
is obviously not relevant here, where appellants' conduct was
obviously intended as a political, rather than a fashion, statement.

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In contrast, the current version of Penal Law sec. 245.01, which was
adopted in 1983 to replace the statute at issue in Price (L 1983, ch
216, sec. 1), was specifically intended to expand the reach of the
"public exposure" prohibition. The new provision was aimed at
filling a gap resulting from the fact that the existing law
prohibited women from appearing topless in public but contained no
prohibition against either men or women appearing bottomless in
public places (Bill Jacket, L 1983, ch 216, Governor's Approval
Memorandum). The explicit purpose of the new law was to protect
parents and children who use the public beaches and parks "from the
discomfort caused by unwelcome public nudity" (id.; accord, Bill
Jacket, L 1983, ch 216, Sponsors' Memorandum re A-5638; id., Letter
dated May 31, 1983 from Assembly Member G.E. Lipshutz to Governor
Cuomo re: A-5638). Simply put, the focus of the legislation was to
proscribe nude sunbathing by ordinary citizens (see, People v
Hollman, 68 NY2d 202). It thus cannot seriously be argued that the
present version of Penal Law sec. 245.01 was intended to be limited, as
its predecessor may have been, to commercially-motivated conduct.

Nor [*9] can it be argued that Penal Law sec. 245.01 was
intended to be confined to conduct that is lewd or intentionally
annoying. First, there is absolutely no support in the legislative
history for such a construction. Second, a construction of Penal Law
sec. 245.01 requiring lewdness would be of highly questionable
validity, since it would render Penal Law sec. 245.00 [prohibiting the
exposure of "intimate parts" "in a lewd manner"] redundant (see,
Statutes, McKinney's Consol Laws of NY, Book 1, sec. 98 ["all parts of
a statute must be harmonized * * * and effect and meaning must * * *
be given to the entire statute"). Finally, whatever the Court may
have said about the limitations of the predecessor provision (see,
People v Price, supra), this Court has already applied the current
version of Penal Law 245.01 to the public exposure of a person's
"intimate parts," even where the conduct was merely an expression of
a personal philosophy or a simple effort to "enhance * * * comfort
[or] acquire an even tan" (People v Hollman, supra, at 206). Our
analysis in People v Hollman (supra), thus plainly belies the
limiting construction the majority now seems to [*10] adopt.

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