People v. Nelson

Appellate Terms of the Supreme Court of New York

People v. Nelson

132 Misc. 2d 882, 506 N.Y.S.2d 935, 1986 N.Y. Misc. LEXIS 2794

CourtAppellate Terms of the Supreme Court of New York

DecidedJuly 1, 1986

StatusPublished

This text of 132 Misc. 2d 882 (People v. Nelson) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Nelson, 132 Misc. 2d 882, 506 N.Y.S.2d 935, 1986 N.Y. Misc. LEXIS 2794 (N.Y. Ct. App. 1986).

Pincite

Opinion

OPINION OF THE COURT

Per Curiam.

Order rendered March 18, 1985 unanimously reversed, on [883]*883the law, defendants’ motions to dismiss denied, and the informations are reinstated.

In People v Clark (27 NY2d 512 [1970]), the defendants therein argued in the Court of Appeals that the jostling statute (Penal Law § 165.25) is unconstitutionally vague and unconstitutional as violative of due process in that it fails to require proof of culpable criminal intent to commit larceny. The court unanimously affirmed the judgments of conviction, necessarily rejecting the constitutional challenges to the statute, albeit without opinion. The determination in Clark remains binding and is dispositive of the constitutional objections raised by defendants in these proceedings. "A unanimous affirmance without opinion by the Court of Appeals of a conviction based upon a certain statute constitute^] a precedent with respect to the constitutionality of that statute, where the question of constitutionality was raised by the briefs upon appeal” (29 NY Jur 2d, Courts and Judges, § 486, at 257). Moreover (as recognized below), courts of original jurisdiction should not ordinarily set aside a statute as unconstitutional, particularly in a case where the Court of Appeals has explicitly, or even implicitly, upheld the validity of the statute (McKinney’s Cons Laws of NY, Book 1, Statutes § 150 [a]).

The component elements of the crime of jostling do not expressly include the element of specific intent to steal or commit larceny (see, e.g., 2 CJI [NY] PL 165.25 pp 1028-1033), and we do not construe the affirmance, without opinion, in Clark sustaining the statute’s constitutionality as adding this element to the statute.

Hughes, P. J., Riccobono and Ostrau, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT

Per Curiam.

Order rendered March 18, 1985 unanimously reversed, on [883]*883the law, defendants’ motions to dismiss denied, and the informations are reinstated.

In People v Clark (27 NY2d 512 [1970]), the defendants therein argued in the Court of Appeals that the jostling statute (Penal Law § 165.25) is unconstitutionally vague and unconstitutional as violative of due process in that it fails to require proof of culpable criminal intent to commit larceny. The court unanimously affirmed the judgments of conviction, necessarily rejecting the constitutional challenges to the statute, albeit without opinion. The determination in Clark remains binding and is dispositive of the constitutional objections raised by defendants in these proceedings. "A unanimous affirmance without opinion by the Court of Appeals of a conviction based upon a certain statute constitute^] a precedent with respect to the constitutionality of that statute, where the question of constitutionality was raised by the briefs upon appeal” (29 NY Jur 2d, Courts and Judges, § 486, at 257). Moreover (as recognized below), courts of original jurisdiction should not ordinarily set aside a statute as unconstitutional, particularly in a case where the Court of Appeals has explicitly, or even implicitly, upheld the validity of the statute (McKinney’s Cons Laws of NY, Book 1, Statutes § 150 [a]).

The component elements of the crime of jostling do not expressly include the element of specific intent to steal or commit larceny (see, e.g., 2 CJI [NY] PL 165.25 pp 1028-1033), and we do not construe the affirmance, without opinion, in Clark sustaining the statute’s constitutionality as adding this element to the statute.

Hughes, P. J., Riccobono and Ostrau, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

132 Misc. 2d 882, 506 N.Y.S.2d 935, 1986 N.Y. Misc. LEXIS 2794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nelson-nyappterm-1986.

Opinion

Related

Cite This Page — Counsel Stack