
    The People of the State of New York, Plaintiff, v Marvin Grandy, Defendant. The People of the State of New York, Plaintiff, v Alphonza White, Defendant.
    City Court of City of Long Beach, Nassau County,
    September 18, 1978
    APPEARANCES OF COUNSEL
    
      Robert Harris for Marvin Grandy, defendant. Jay Davis for Alphonza White, defendant. Denis Dillon, District Attorney (Lawrence Dugan of counsel), for plaintiff.
   OPINION OF THE COURT

Jack Mackston, J.

Defendants, each charged with disorderly conduct, violations of subdivisions 2 and 3 of section 240.20 of the Penal Law, now move for dismissal upon the ground that those sections are unconstitutionally vague.

Subdivisions 2 and 3 of section 240.20 of the Penal Law provide as follows:

"A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

* * *

"2. He makes unreasonable noise; or

"3. In a public place, he uses abusive or obscene language, or makes an obscene gesture”.

There is a strong presumption that a statute, duly enacted is valid. (People v Pagnotta, 25 NY2d 333.) A court of first impression is not bound to set aside a law as unconstitutional unless that conclusion is inescapable (Incorporated Vil. of Lloyd Harbor v Town of Huntington, 143 NYS2d 797; People v Elkin, 196 Misc 188) and demonstrated beyond a reasonable doubt by the one asserting it. (Matter of Van Berkel v Power, 16 NY2d 37; McKinney’s Cons Laws of NY, Book 1, Statutes, § 150.) This, defendant has failed to do.

As was stated in People v Berck (32 NY2d 567, 569): "a penal law is void for vagueness when it '" 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden * * * ’ * * * 'ft is the rule that for validity a criminal statute must be informative on its face * * * and so explicit that’ all men subject to their penalties may know what acts it is their duty to avoid” ’ ”.

In interpreting penal statutes the words thereof are afforded their commonly accepted meaning. (People v Glubo, 5 NY2d 461.)

In International Harvester Co. v Kentucky (234 US 216, 223) Justice Holmes stated: "We regard this decision as consistent with Nash v. United States, 229 U. S. 373, 377, in which it was held that a criminal law is not unconstitutional merely because it throws upon men the risk of rightly estimating a matter of degree * * * It goes no further than to recognize that, as with negligence, between the two extremes of the obviously illegal and the plainly lawful there is a gradual approach and that the complexity of life makes it impossible to draw a line in advance without an artificial simplification that would be unjust.” (See, also, People v Lenti, 44 Misc 2d 118.)

That more precise language may have been used in drawing a statute does not render it unconstitutional. (United States v Petrillo, 332 US 1.)

It is the court’s belief that when reasonably viewed the subject sections are not ambiguous, and defendants have failed to establish the contrary beyond a reasonable doubt. Accordingly, the motions are denied. The matter is set down for conference September 27, 1978, at 9:30 a.m.  