People v. Choremi

Fuld, J. Though there is serious doubt as to the sufficiency of the information filed against defendant (cf. People v. Zambounis, 251 N. Y. 94, 95-96; People v. Santoro, 229 N. Y. 277, 282-283; People v. Albow, 140 N. Y. 130, 134), we choose to place our decision upon the ground that there is no evidence in the record before us to establish that she is a vagrant under subdivision 4 of section 887 of the Code of Criminal Procedure. Concededly, there is nothing in the record except three wiretapped telephone conversations between defendant and Madeleine Blavier — one on May 5, another on May 20 and the third on May 21,1948 — and one seeks in vain in those conversations for the essential proof of loitering “ for the purpose of inducing, enticing or procuring another to commit * * * unlawful sexual intercourse ” (Code Crim. Pro., § 887, subd. 4, cl, [c].). While those talks do indicate that defendant may have been intent on granting her favors for a price, there is not the slightest bit of evidence that she committed an act of prostitution or of unlawful sexual intercourse or that she loitered any place for the purpose proscribed by the statute. As the magistrate before whom the case was tried properly ruled, the evidence of defendant’s offense of vagrancy “ comes down to * * * the alleged telephone * * * [call] of May 20th ” that Blavier made to defendant at the latter’s apartment. After being told by Blavier that she was “ at 55th Street ’ ’ and had made an appointment “ with Bene ” and a “ friend ” of his “ for 2:30 today ”, defendant simply replied “ All right ” and ‘ ‘ I can be there. ’ ’ Where did the defendant “ loiter ” ? Was it at her home where she was when Blavier called her or was it at 55th Street where the. man was to be ? Of what did the loitering consist? Where was the evidence of a purpose to induce, entice or procure another to commit an act of sexual intercourse ? Suggestive though the conversation may have been of an act of prostitution to be committed in the future, it is our view that it contained naught to indicate that defendant was “ loitering ” . at her home — the act charged against her in the information — for “ the purpose of inducing, enticing or procuring another ” to commit the prohibited act. Suspicion and surmise there may have been that defendant might thereafter engage in illicit conduct, but neither the one nor the other constitutes that kind of proof which our system of justice demands to support a con [420] viction. (See People v. Orr, 270 N. Y. 193, 196; People v. Sohn, 269 N. Y. 330, 335.) Even assuming that one may “ loiter ” — as that word is used in the criminal statute under consideration (cf. City of Olathe v. Lauck, 156 Kan. 637, 640; City of Columbus v. Aldrich, 69 Ohio App. 396, 399-400; see, also, Stephens v. District of Columbia, 16 D. C. App. 279, 281; State v. Badda, 97 W. Va. 417, 419; and see, also, Webster’s New International Dictionary [2d ed.], p. 1454) — in one’s own home, the record is devoid of any proof of such an act. And, since the charge was of ‘ ‘ loitering ’ ’ in her home, we merely note that there is not even an intimation that defendaht went to the place on 55th Street, the suggested rendezvous. But even if we were to conclude that there was proof of ‘ ‘ loitering ’ ’, we find it even more difficult to spell out evidence that defendant loitered ‘ ‘ for the purpose of inducing, enticing, or procuring ” anyone to have sex relations with her. Quite apart from other considerations, the telephone call was from Blavier to defendant and the alleged appointment was arranged by Blavier and proffered by her to defendant. In addition, the utter weakness of the case, its thin and meager nature, is emphasized and accentuated by comparing it with People v. Reynolds (300 N. Y. 616), also a prosecution for vagrancy, though based upon a different clause of subdivision 4. In the Reynolds case (supra), the conviction depended not only upon wire-tapped telephone conversations but upon evidence by the police that they kept the premises in question under surveillance, that they saw the men and women who had been in the apartment pair off and repair to bedrooms where the lights went off shortly after their entry, that they found them in compromising positions when they made arrests, and that the defendant stated that she was “ responsible for everything that took place.” (Reynolds Record on Appeal, fols. 297, 320, 331-336, 339-340, 365-379, 391, 410-411.) Contrary to the fears expressed by the minority, the court is not “ drawing * * * distinctions between different modes of commission of the same, essentially criminal act.” (Opinion of Conway, J., p. 422.) Obviously, if the act charged against a defendant be proved, it matters not how defendant committed it or where. In the case before us, there must be a reversal because [421] the evidence adduced by the prosecution fails to establish that defendant was guilty of the offense charged. The judgments should be reversed and the information dismissed.