Franza v. Carey

Order, Supreme Court, New York County (Eve Preminger, J.), entered August 27,1982, holding that article 39 of the General Business Law is not impermissibly vague on its face, but, with respect to the sale and display of multiuse items, granting plaintiffs’ application for a preliminary injunction and directing a hearing to determine as to such items the constitutionality of article 39, modified, on the law, to the extent of declaring subdivision 2 of section 852 of the General Business Law to be unconstitutional, and severing that section, vacating the preliminary injunction, and dismissing the complaint, and otherwise affirmed, without costs. I In his opinion, dissenting in part from the conclusions here reached, Justice Carro fully sets forth the provisions of article 39 of the General Business Law, the statute with which We are concerned, the procedural history of this litigation, and the relevant facts. K We agree with Special Term, essentially for the reasons set forth in Special Term’s detailed and thoughtful opinion (115 Mise 2d 882), that article 39 is not impermissibly vague. This view is in accord with what is now clearly the overwhelming weight of relevant authority. (See, e.g., Hoffman Estates v Flipside, Hoffman Estates, 455 US 489; Town Tobacconist v Kimmelman, 94 NJ 85; Weiler v Carpenter, 695 F2d 1348; Casbah, Inc. v Thone, 651 F2d 551; New England Accessories Trade Assn, v Tierney, 691 F2d 35, 36.) 11 We are in essential agreement with Special Term’s conclusion that a violation of article 39 occurs only if the violator is shown to have a culpable intent. As applied to retailers, possession of drug paraphernalia does not give rise to a violation unless the retailer intends to sell the drug paraphernalia to those who will use it in a prohibited manner. The phrase in section 851 of the General Business Law — “under circumstances evincing knowledge” — seems to us reasonably construed to require a showing that a retailer has reason from the circumstances to know, and in fact believes, that the buyer of drug paraphernalia intends to use it for a proscribed purpose. (Cf. Town Tobacconist v Kimmelman, supra.) 11 So construed, we perceive no basis for Special Term’s conclusion that a hearing was required prior to enforcement 781 of the statute to determine the constitutionality of its application to one or another of the so-called multiple-use items that the plaintiffs possess. Indeed, since the critical issue in connection with any enforcement of the statute will be the intent of the defendant and, with respect to sales of drug paraphernalia, the actual belief of the defendant as to its intended use, the circumstances are inappropriate for pre-enforcement declaratory relief. 11A more troublesome problem is presented by the forfeiture provision set forth in subdivision 2 of section 852, which provides in pertinent part: “The possession with intent to sell or offering for sale of drug-related paraphernalia as defined herein is hereby declared to be a nuisance, and where any such drug-related paraphernalia shall be taken from the possession of any person, the same shall he surrendered and forfeited”. 11 Special Term was clearly on sound ground in concluding that the omission of a specific requirement of probable cause in the subdivision is not reasonably interpreted as diluting the requirement that there be probable cause prior to any search or seizure undertaken pursuant to the subdivision. More disturbing is the absence from this subdivision of any provision for postseizure notice and hearing, which contrasts sharply with the hearing requirements set forth in subdivision 1 of section 852 and section 853 addressed to other aspects of the problem. We are unable to perceive in the statute or in the other authorities relied upon by defendants a sufficient basis for the court to construe the statute as mandating such a postseizure hearing. (See Weiler v Carpenter, supra, at p 1350.) The apparently contrary conclusion reached in Casbah, Inc. v Thone (supra) was clearly influenced by the understanding that Nebraska law independently assured the availability of such a hearing. No comparable authority in this State has been called to our attention. U Matter of Buttonow (23 NY2d 385), the principal authority advanced in support of our right to construe the challenged section to require a hearing that it does not explicitly require, seems to us so clearly distinguishable as to render that decision of doubtful assistance here. (Cf. Snead v Department of Social Seros., 355 F Supp 764 [SDNY]; People v Lee, 58 NY2d 491.) H Accordingly, we find that the omission from subdivision 2 of section 852 of the General Business Law of any right to at least a postseizure hearing prior to forfeiture violates the due process clause of the Constitution. (See Weiler v Carpenter, supra, at p 1350; cf. Calero-Toledo v Pearson Yacht Leasing Co., 416 US 663, 679-680.) There appears to be no persuasive reason why this invalid section may not properly be severed from the rest of the statute, and we accordingly do so. Concur — Kupferman, J. P., Sandler, Milonas and Alexander, JJ.