People v. Nixon , 390 N.Y.S.2d 518 ( 1976 )

Memorandum. The orders should be affirmed.

In our opinion section 40-1 of the Yonkers City Code is unconstitutional on its face. Although topless dancing in establishments selling liquor may properly be regulated (California v La Rue, 409 US 109), the ordinance involved is an across the board prohibition against any breast exposure in public. Since the thrust of the statute is directed against nudity rather than obscenity, it infringes upon the exercise of First Amendment rights. Even if the ordinance may be constitutionally applied to the activities of defendants, it may be challenged on the basis of overbreadth if, as here, it is drawn so as to sweep within its ambit the speech or expression of other persons not before the court (Doran v Salem Inn, 422 US 922).

Concur — Farley, P. J., Pittoni and Gagliardi, JJ.