The People v. Harvert Stephens, Also Known as Havert Stephens , 28 N.Y.3d 307 ( 2016 )


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  • This opinion is uncorrected and subject to revision before
    publication in the New York Reports.
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    No. 171
    The People &c.,
    Respondent,
    v.
    Harvert Stephens, Also Known as
    Havert Stephens,
    Appellant.
    Kristen McDermott, for appellant.
    James P. Maxwell, for respondent.
    John A. Sickinger, for amicus curiae City of Syracuse.
    GARCIA, J.:
    This case calls upon us to determine the
    constitutionality of Syracuse Noise Control Ordinance ("Syracuse
    Noise Ordinance") section 40-16 (b) (sound reproduction), which
    prohibits the creation of "unnecessary noise" emanating beyond 50
    feet from a motor vehicle operated on a public highway.
    Specifically, we are asked whether this section is
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    unconstitutional pursuant to our decision in People v New York
    Trap Rock Corp. (57 NY2d 371 [1982]).   For the reasons stated
    below, we conclude that the statute does not "offend the
    constitutional void-for-vagueness doctrine of due process" (id.
    at 374)
    Defendant was charged with criminal possession of a
    controlled substance in the third degree, criminal possession of
    a controlled substance in the fifth degree and with sound
    reproduction in violation of the Syracuse City Ordinance section
    40-16 (b).   Defendant's vehicle was stopped by police officers
    who believed his car stereo was operating at a volume that could
    be heard more than 50 feet away in violation of section 40-16
    (b).   During that stop, the arresting officers discovered
    defendant was in possession of crack cocaine, some of which was
    in plain view.
    Syracuse Noise Ordinance section 40-4 sets forth the
    "general prohibition" against "unnecessary noise," stating: "No
    person shall make, continue or cause or permit to be made any
    unnecessary noise."   "Unnecessary noise" is defined in section
    40-3 (u) as "any excessive or unusually loud sound or any sound
    which either annoys, disturbs, injures or endangers the comfort,
    repose, health, peace or safety of a reasonable person of normal
    sensibilities, or which causes injury to animal life or damage to
    property or business" [emphasis added].   This section includes
    eleven standards "to be considered in determining whether
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    unnecessary noise exists in a given situation" (id. § 40-3 [u]).
    The Syracuse Noise Ordinance also contains 14 sections listing
    acts that constitute prima facie evidence of a violation of the
    ordinance (id. § 40-4).   Here, the indictment specifically
    charged, and defendant was convicted of, one of these 14
    enumerated acts:
    "No person shall operate, play or permit
    the operation or playing of any radio,
    television, phonograph, drum, musical
    instrument, sound amplifier or similar
    device which produces, reproduces or
    amplifies sound: . . . (b) In such a
    manner as to create unnecessary noise at
    fifty (50) feet from such device, when
    operated in or on a motor vehicle on a
    public highway" (id. § 40-16 [b]).
    Defendant moved to suppress the crack cocaine
    discovered during the traffic stop.    At the suppression hearing,
    two police officers testified that the music could be heard from
    at least 100 feet away from defendant's vehicle.   At the
    conclusion of the hearing, defendant moved to dismiss the count
    charging a violation of section 40-16 (b), arguing that the
    Syracuse Noise Ordinance was unconstitutional under the
    void-for-vagueness doctrine.   He further argued that suppression
    of the drugs seized as a result of the stop was required.
    Supreme Court denied both the dismissal and suppression
    motions.   Although the court determined the Syracuse Noise
    Ordinance was arguably unconstitutional, Supreme Court concluded
    "that the Appellate Division should make the determination as to
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    whether or not the ordinance passes constitutional muster."
    Supreme Court further determined "there was sufficient proof of
    probable cause to believe the defendant violated Section 40-16
    (b) of the Syracuse Noise Ordinance, which prohibits
    dissemination of 'unnecessary noise' beyond 50 feet of an
    automobile, because there was testimony on this point that the
    court has found credible."
    At the subsequent bench trial, which was conducted on
    stipulated proof, defendant was convicted as charged.
    On appeal, the Appellate Division unanimously affirmed,
    holding that the Syracuse Noise Ordinance was constitutional (128
    AD3d 1497 [4th Dept 2015]).   The Appellate Division rejected
    defendant's argument that the ordinance was unconstitutionally
    vague, reasoning that while a similar local noise ordinance was
    held to be void for vagueness in Trap Rock, the Syracuse Noise
    Ordinance at issue "defines 'unnecessary noise' with reference to
    an objective standard of reasonableness rather than a subjective
    standard, and thus it is not unconstitutionally vague on that
    ground" (id. at 1498, quoting Syracuse Noise Ordinance § 40-3
    [u]).   The court further found that section 40-16 (b) was not
    unconstitutionally vague because it was "tailored to a specific
    context -- the creation of 'unnecessary noise' beyond 50 feet of
    a motor vehicle on a public highway" (id. at 1498-1499).    A Judge
    of this Court granted leave to appeal, and we now affirm.
    Defendant has challenged the constitutionality of the
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    Syracuse Noise Ordinance both on its face and as applied.
    However, when a "defendant makes an as-applied challenge and the
    court repudiates it," as we do here, "the facial validity of the
    statute is confirmed" because the court "necessarily concluded
    that there is at least one person -- the defendant -- to whom the
    statute may be applied constitutionally" (People v Stuart, 100
    NY2d 412, 422-423 [2003]).
    Municipal ordinances are afforded an "exceedingly
    strong presumption of constitutionality" (Lighthouse Shores, Inc.
    v Town of Islip, 41 NY2d 7, 11 [1976]; see also Brady v State, 80
    NY2d 596, 602 [1992]) and should "be construed 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]).    We
    have further recognized that "noise regulation poses special
    problems of draftsmanship and enforcement," as the "nature of
    sound makes resort to broadly stated definitions and prohibitions
    not only common but difficult to avoid" (Trap Rock, 57 NY2d at
    379).
    With these general principles in mind, we analyze this
    vagueness challenge using a two-part test (Stuart, 100 NY2d at
    420; People v Nelson, 69 NY2d 302, 307 [1987]; People v Smith, 44
    NY2d 613, 618 [1978]).   First, we must determine "whether the
    statute in question is sufficiently definite to give a person of
    ordinary intelligence fair notice that his contemplated conduct
    is forbidden" (Stuart, 100 NY2d at 420, citing Nelson, 69 NY2d at
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    307 [internal quotation marks omitted]; see also Smith, 44 NY2d
    at 618, quoting United States v Harriss, 
    347 U.S. 612
    , 617 [1954]).
    Second, we must determine "whether the enactment provides
    officials with clear standards for enforcement" so as to avoid
    "resolution on an ad hoc and subjective basis, with the attendant
    dangers of arbitrary and discriminatory application" (Stuart, 100
    NY2d at 420-421, quoting Grayned v City of Rockford, 
    408 U.S. 104
    ,
    108-109 [1972]; Nelson, 69 NY2d at 307).   Accordingly, a statute
    is "unconstitutionally vague under the Due Process Clauses of the
    Federal and State Constitutions [where] it fails to give fair
    notice to the ordinary citizen that the prohibited conduct is
    illegal, [and] it lacks minimal legislative guidelines, thereby
    permitting arbitrary enforcement" (People v Bright, 71 NY2d 376,
    379 [1988]).   On the other hand, "[a] statute which employs terms
    having an accepted meaning long recognized in law and life cannot
    be said to be so vague and indefinite as to afford the defendant
    insufficient notice of what is prohibited or inadequate
    guidelines for adjudication, even though there may be an element
    of degree in the definition as to which estimates might differ"
    (People v Cruz, 48 NY2d 419, 428 [1979] [internal quotation marks
    and citations omitted]).
    Contrary to defendant's claim, the Syracuse Noise
    Ordinance challenged here does not suffer from the same
    constitutional infirmities as the Poughkeepsie Noise Ordinance
    (Unnecessary Noise Control Ordinance of the Town of Poughkeepsie,
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    adopted July 13, 1977) challenged in Trap Rock.   The Poughkeepsie
    Noise Ordinance contained a general provision prohibiting a
    person from making "any unnecessary noise," defined as "any
    excessive or unusually loud sound or any sound which either
    annoys, disturbs, injures or endangers the comfort, repose,
    health peace or safety of a person" (Trap Rock, 57 NY2d at 375
    [emphasis added]).   That statute listed ten non-exclusive
    standards to be considered in determining whether "unnecessary
    noise" existed in a given situation (id. at 375-376).   The
    Poughkeepsie Noise Ordinance then listed 17 acts which would
    violate the law if they created unnecessary noise; notably,
    however, violation of any one of those 17 subdivisions would also
    constitute a violation of the general provision against making
    "any unnecessary noise" (id. at 376).   The defendant in Trap Rock
    was convicted of violating one of the specific subdivisions as
    well as the general provision based upon the same conduct.
    In Trap Rock, we turned first to the specific
    subdivision defendant had been found to violate -- the making of
    unnecessary noise within 300 feet of the boundary line of a
    residential district -- and noted that it was unreasonably
    expanded by the phrase "without limiting the above language" (id.
    at 380).   In effect, the Trap Rock defendant was convicted of
    violating that specific provision even though the commercial
    loading activity at issue took place 2,400 feet from any
    residential boundary (id.).   We found "still more egregious" the
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    fact that the identical conduct also resulted in conviction under
    the blanket provision against making "any unnecessary noise" -- a
    section "permeated with vagueness" (id.).    We found that the
    subjective definition of "unnecessary noise" in that provision --
    "any excessive or unusually loud sound or any sound which . . .
    annoys . . . a person" -- could result in convictions based
    solely on the malice or animosity of a cantankerous neighbor
    (id.).   The ten specific standards that were articulated did not
    save the statute, as the standards were themselves vague and
    non-exclusive (id. at 381).    As a result, we held that the
    pervasive nature of the statute's catchall effect made the
    ordinance a ready candidate for ad hoc enforcement and that,
    accordingly, the Poughkeepsie Noise Ordinance was
    unconstitutional (id.).
    The crucial difference here is that the Syracuse Noise
    Ordinance defines "unnecessary noise" based on an objective
    standard -- specifically, "a reasonable person of normal
    sensibilities" (Syracuse Noise Ordinance § 40-3 [u]).    As we
    concluded in People v Bakolas (59 NY2d 51 [1983]), decided less
    than a year after Trap Rock, the "term 'unreasonable noise' is
    not incapable of definition.    Rather, it describes a noise of a
    type or volume that a reasonable person, under the circumstances,
    would not tolerate" (id. at 53).    The Bakolas Court distinguished
    Trap Rock, finding that an objective standard prevents arbitrary
    and discriminatory "enforcement according to the 'malice or
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    animosity of a cantankerous neighbor' or the 'boiling point of a
    particular person'" (Bakolas, 59 NY2d at 54, quoting Trap Rock,
    57 NY2d at 380).
    Additionally, unlike the Poughkeepsie Noise Ordinance,
    Syracuse Noise Ordinance section 40-16 (b) is "tailored to a
    specific context" -- limiting the prohibition to creating
    "unnecessary noise" by playing a radio or similar device that can
    be heard at least 50 feet away when being operated in a motor
    vehicle on a public highway.   We recognized in Trap Rock that
    "antinoise cases" have upheld noise regulations that apply within
    limited contexts and convey "an accepted meaning" (Cruz, 48 NY2d
    at 428) to such otherwise imprecise words as "loud" or
    "excessive" (Trap Rock, 57 NY2d at 379, quoting People v Byron,
    17 NY2d 64, 67 [1966]).   For example, in People v Byron, we
    upheld a motor vehicle statute that mandated that "[e]very motor
    vehicle, operated or driven upon the highways of the state, shall
    at all times be equipped with an adequate muffler . . . to
    prevent any excessive or unusual noise . . ." (id. at 66).     This
    Court concluded "[w]hat is unusual noise in the operation of a
    car has become common knowledge and anything in excess of that is
    excessive or unusual and any ordinary motorist should have no
    difficulty in ascertaining whether or not excessive or unusual
    noise accompanied the operation of his vehicle" (id. at 67).     We
    agree with the Appellate Division's conclusion below that
    "'[w]hat is usual noise in the operation of a car [radio or other
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    sound production device] has become common knowledge . . . and
    any ordinary motorist should have no difficulty in ascertaining'
    whether the noise in question violates the applicable standard"
    (128 AD3d at 1499, quoting Byron, 17 NY2d at 67).
    Accordingly, Syracuse Noise Ordinance section 40-16 (b)
    is sufficiently definite to put a person on notice that playing
    music which can be heard over 50 feet from such person's car on a
    public road, in a manner that would annoy or disturb "a
    reasonable person of normal sensibilities" is forbidden conduct
    and the objective standard affords police sufficiently "clear
    standards [for] enforcement" (Stuart, 100 NY2d at 420).
    Moreover, unlike the Poughkeepsie Noise Ordinance at issue in
    Trap Rock, section 40-16 does not contain any "without limiting
    the above language" clause that would make it possible to convict
    defendant of violating section 40-16 (b) for creating unnecessary
    noise that could be heard at distances less than 50 feet from his
    vehicle.
    For the reasons set forth above, we hold that the
    Syracuse Noise Ordinance is constitutional.1   We have considered
    defendant's remaining contentions on appeal and conclude they are
    without merit.   Accordingly, the Appellate Division order should
    1
    Our conclusion is in line with federal courts which have
    considered the Syracuse Noise Ordinance and other similar laws
    that incorporate an objective standard (see Marcavage v Syracuse
    Police Dept., 515 Fed Appx 14 [2d Cir 2013]; Howard Opera House
    Assocs. v Urban Outfitters, Inc., 322 F3d 125, 128 [2d Cir
    2003]).
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    be affirmed.
    *   *   *   *   *   *   *   *     *      *   *   *   *   *   *     *   *
    Order affirmed. Opinion by Judge Garcia. Chief Judge DiFiore
    and Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.
    Decided November 21, 2016
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Document Info

Docket Number: 171

Citation Numbers: 28 N.Y.3d 307, 66 N.E.3d 1070

Judges: Garcia, Difiore, Pigott, Rivera, Abdus-Salaam, Stein, Fahey

Filed Date: 11/21/2016

Precedential Status: Precedential

Modified Date: 11/12/2024