
    The People of the State of New York, Respondent, v. Cora T. Walker, Appellant.
    Argued May 7, 1964;
    decided July 10, 1964.
    
      
      Whitney North Seymour, Jr., for appellant.
    
      Leo A. Larkin, Corporation Counsel (Edward J. McLaughlin and Seymour B. Quel of counsel), for respondent.
    
      Samuel D. Smoleff for the Citizens Union of the City of New York, amicus curiae.
    
   Memorandum. The judgment of conviction should be reversed and a new trial ordered. The prosecution of defendant for violations of the Multiple Dwelling Law came closely in sequence upon the exposure by her of corrupt practices in the Department of Buildings. She contends that the prosecution was the result of an intentional discrimination which deprived her of the constitutional right to equal protection of the laws. She was unduly restricted on the trial in her attempts to prove this contention. Latitude should be allowed in this complex area of proof. We do not hold that defendant has demonstrated intentional discrimination in her prosecution. We rule, merely, that she should have a fair opportunity to establish it on her trial.

Chief Judge Desmond

(dissenting). I protest what appears to be the introduction into our criminal law of a novel and mischievous defense. Is a person guilty of crimes to go free because local officials were actuated by corrupt or vengeful motives in prosecuting? There is no precedent for such a holding. It will certainly worsen the current crisis in criminal law enforcement if we let the culprit go free because the police officer or inspector has not proceeded against every other guilty person. The gambler and the narcotics peddler (even the speeder) will have a new kind of license to violate the law. None of the earlier decisions go so far. From Yick Wo v. Hopkins (118 U. S. 356) to People v. Utica Daw’s Drug Co. (16 A D 2d 12) the cited cases all refer to a “ pattern of discrimination ” (see People v. Friedman, 302 N. Y. 75, 81) meaning a situation where the statute itself contemplates or leads to discrimination or where a generally unenforced law is dug up to harass a particular defendant or group. What has all this to do with the State Multiple Dwelling Law and the New York City Administrative Code sections which, as our own records show, are enforced against building owners in thousands of cases?

I would affirm.

Burke, J.

(dissenting). If the constitutional defense of unequal protection of the laws were maintainable solely upon a showing of bad motive .on the part of those responsible for the placing of the violations of which appellant is admittedly guilty, then I would concur for reversal. This, however, is not the law; nor does the court say it is. Since the legislation under which appellant has been convicted is itself valid, and since appellant is admittedly guilty of the violations, the defense of unequal protection is established only upon a showing of both bad motive in the subject case and nonenforcement as to others similarly situated (People v. Friedman, 302 N. Y. 75; People v. Utica Daw’s Drug Co., 16 A D 2d 12). The element of uneven enforcement is of the very essence and substance of the constitutional claim. The violations are not hypertechnical nor have they fallen into a sort of desuetude. The violations, among which are the creation of an additional room by a partition, an additional class B room out of a vestibule, and the maintenance of a defective sprinkler valve, are, in my experience, commonly enforced in New York City. In any event they should not be assumed to be dead letters in the total absence of evidence to that effect.

The fact that the trial court was apparently prepared to exclude any evidence other than that bearing directly on guilt or innocence does not excuse appellant from offering to prove all of the elements of her defense. Concededly, all her offers of proof went solely to the point of bad motive in her individual case. Sympathetic as we may be toward appellant’s unfortunate position as the result of what she alleges were numerous bribe solicitations by Building Department officials, we have no license to play fast and loose with the elements of so volatile a doctrine as equal protection of the laws. If the statutory requirements to which appellant was held were generally enforced, then there was no infringement of her constitutional right when she was prosecuted for their violation—no matter how contemptible may have been the motives of those who enforced the law. Were the law otherwise all enforcement proceedings could be turned into subjective expeditions into motive without the stabilizing, objectively verifiable, element of an unequal pattern of enforcement. No one has a constitutional right to random enforcement of the law. No one has a constitutional right to sincere enforcement of the law. The right is to equal enforcement of the law. All of the cases dealing with this question have required such a showing, from Yick Wo v. Hopkins (118 U. S. 356), where discrimination against Chinese laundries was established, down to this State’s leading case, People v. Utica Daw’s Drug Co. (16 A D 2d 12, supra), where the defendant showed that only cut-rate drugstores in Utica were held to the requirements of section 2147 of the Penal Law. Appellant, after all, has the burden of proof of all the elements of this defense and if in fact the violation of which she is guilty were not enforced against others similarly situated it would not be difficult to so prove. Building Department records are amenable to subpoena and the Building Department officials who testified could have been questioned as to the pattern of enforcement of the relevant regulations. None of this was done. According to the respondent, this omission was calculated because it would have shown that the rigorous inspection to which appellant’s building was subjected was the result of an established policy of reinspecting all buildings previously inspected by an official under suspicion of misconduct — as was the case with appellant’s building. Whether this is true or not is a question essential to appellant’s defense and one which she ought to have pursued at the trial in order to now make her constitutional argument. Not having done so, she is without remedy in this court. I would affirm.

Judges Dye, Fuld, Van Voorhis and Bergan concur in Memorandum ; Chief Judge Desmond and Judge Burke dissent in separate opinions in each of which the other concurs and in both of which Judge Scileppi concurs.

Judgment reversed, etc. 
      
       A denial of equal protection is not a defense to the criminal prosecution in the ordinary sense in which, when the point is- raised, the prosecution has to prove beyond a reasonable doubt that it is not discriminating. It is in the nature of an injunctive proceeding to bar prosecution of a crime regardless of guilt — which the defendant must establish to the court, not the jury, “by a clear preponderance of the proof ” (People v. Utica Daw’s Drug Co., 16 A D 2d 12, 18, supra).
      
     