
    The People of the State of New York, Respondent, v. Donald Schanbarger, Appellant.
    Argued February 28, 1969;
    decided April 10, 1969.
    
      
      Donald Schanbarger, appellant pro se.
    
    I. Defendant was traffic under section 152 of the Vehicle and Traffic Law and was a pedestrian under section 1156 (subd. [b]) at the time of his arrest on April 30, 1968. The State has the duty to maintain its highways in safe condition for all travelers, pedestrians as well as motorists. (Wager v. State of New York, 170 Misc. 357.) II. The information does not sufficiently allege offense, and states misconduct of Trooper Kellogg. III. Defendant’s walking along Routes 9 and 20 between 3:00 and 3:30 a.m. is not wrong or unlawful. He did not remain and wander about in a public place or justify suspicion that he had committed a crime or was about to commit one. IV. Trooper Kellogg said it was a fair assumption that defendant walked without stopping between 3:00 and 3:30 a.m. This is not loitering or remaining and wandering about. V. There was no statement or witness that defendant was advised that he could have a witness or attorney or of his right to remain silent before he was taken before the Justice. (June Fabrics v. Teri Sue Fashions, 194 Misc. 267.) VI. There was no evidence or statement that defendant was advised why he was asked any questions. A citizen, when interrogated about his private affairs, has a right, before answering, to know why inquiry is made and, if purpose disclosed is not legitimate one, he may not be compelled to answer. (Jones v. Securities Comm., 298 U. S. 1.) VII. This arrest and search, conviction and fine of defendant was illegal and in violation of the United States Constitution (4th, 5th & 14th Arndts.) and the New York Constitution (art. I, §§ 6, 11, 12) and the Code of Criminal Procedure (§ 10). (Boyd v. United States, 116 U. S. 616; Pierce v. Society of Sisters, 268 U. S. 510.) VIII. The statute unconstitutionally punishes a person because of his status and not his acts. (Robinson v. California, 370 U. S. 660; Hicks v. District of Columbia, 383 U. S. 252.) IX. Defendant has been deprived of his privileges and immunities as a citizen. (Colgate v. Harvey, 296 U. S. 404; Toomer v. Witsell, 334 U. S. 385; Twining v. New Jersey, 211 U. S. 78; Matter of Fenster v. Criminal Ct. of City of N. Y., 17 N Y 2d 641.) X. The law under which defendant was charged subjects a person to prove himself innocent of a crime, or intent to commit a crime, to the satisfaction of a peace officer without aid of counsel, without being charged with any crime, and deprives a person of the right to remain silent, a basic of American jurisprudence. (People ex rel. Fry v. Hunt, 289 N. Y. 653; Central Sav. Bank v. New York City, 280 N. Y. 9; Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512, 339 U. S. 981; Matter of Van Allen v. McCleary, 27 Misc 2d 81; People v. Laino, 10 N Y 2d 161, 374 U. S. 104; People v. Ryan, 11 A D 2d 155; People v. Logan, 39 Misc 2d 593; Haftel v. Appleton, 42 Misc 2d 292, 21 A D 2d 651; People v. Young, 42 Misc 2d 540; People v. Waterman, 9 N Y 2d 561.)
    
      Con G. Cholakis, District Attorney (Kermit D. McGinnis of counsel), for respondent.
    I. Sufficient evidence was presented at the trial to find defendant guilty beyond a reasonable doubt. II. Subdivision 6 of section 240.35 of the Penal Law is constitutional on its face and as applied to defendant herein. (Escobedo v. Illinois, 378 U. S. 478; Miranda v. Arizona, 384 U. S. 436; People v. Bell, 306 N. Y. 110; People v. Merolla, 9 N Y 2d 62, 365 U. S. 872; United States v. Bonanno, 180 F. Supp. 71; United States v. Bufalino, 285 F. 2d 408; People v. Rivera, 14 NY 2d 441, 379 U. S. 978; People v. Peters, 18 N Y 2d 238, 392 U. S. 40; People v. Sibron, 18 N Y 2d 603, 392 U. S. 40; People v. Schwartz, 53 Misc 2d 635.)
   Burke, J.

State Trooper Kellogg was on routine patrol on Routes 9 and 20 in the Townships of Schodack and East Green-bush in the early morning hours of April 30, 1968. At about 3 o’clock in the morning he observed a man walking along the highway but. he paid little attention to him, other than noting that the hour was late, and thought that it was someone returning home since it was a residential area. About a half-hour later, while still on the same highway, Trooper Kellogg observed the same man walking along the highway in the vicinity of the East Greenbush Shopping Center. His suspicions were aroused as to the man’s intent and purpose since this particular area had been the subject of frequent burglaries. The trooper stopped his vehicle and asked the man to come over to the car and tell him where he was going, where he was coming from and his identity and where he resided. The man replied that he did not think he had to answer the questions. The trooper informed the man that his refusal to answer the questions could result in Ms being arrested for loitering but the man still refused to answer the questions. The trooper arrested the man and a search of his person revealed that his name was that of the defendant, Donald Schanberger.

Trooper Kellogg filed an information charging the defendant with violation of section 240.35 (subd. 6) of the Penal Law in that he ‘ ‘ did remain & wander about in a public place without apparent reason under circumstances wMch justify suspicion & upon inquiry of a peace officer to wit : Tpr Kellogg refused to identify Mmself and failed to give a reasonable credible account of his conduct or purpose.” Upon the trial of the charge, the trooper testified to the facts as recited above and defendant was convicted and fined $10.

On this pro se appeal, defendant challenges the constitutionality of the statute under which he was convicted. We find it unnecessary to deal with the constitutional argument. The subdivision of the statute under which he was convicted contains clauses which are conjunctive, rather than disjunctive, and, in order to sustain a conviction under it, each of the conjunctive elements must be proved beyond a reasonable doubt. The information under which he was tried substantially restated the terms of the section with the crucial exception of that part of the section which states that the loitering, remaining or wandering must be under circumstances which ‘ ‘ justify suspicion +hat he may be engaged or about to engage in crime (Italics supplied.) The information in this case nowhere states that the circumstances were such that the trooper was justified in suspecting that the defendant might be engaged or was about to engage in crime. Furthermore, the trooper’s testimony indicated nothing more than that he observed the defendant walking along a public Mghway in an area in which there had been frequent burglaries ”. Such testimony ig clearly insufficient to.establish any basis for a reasonable suspicion that the defendant might be engaged or was about to engage in crime. In fact, it appears clear from the trial minutes that the defendant was convicted for his failure to answer the trooper’s questions concerning his destination and identity. While it may be true that there was no reason why the defendant should not have answered the trooper’s questions, it equally is true that his failure to answer cannot constitute a criminal act and, particularly, a violation of subdivision 6 of section 240.35. Accordingly, the judgment should be reversed and the information dismissed.

Chief Judge Fuld and Judges Soileppi, Bergan, Keating, Breitel and Jasen concur.

Judgment reversed, etc.  