People v. Berck, 32 N.Y.2d 567 (1973)

A loitering statute is unconstitutionally vague if it fails to provide adequate notice of the prohibited conduct and grants unfettered discretion to law enforcement, thus encouraging arbitrary and discriminatory enforcement.

Summary

The New York Court of Appeals held that Penal Law § 240.35(6), a loitering statute, was unconstitutionally vague. The statute criminalized loitering “in or about a place without apparent reason” under circumstances that “justify suspicion” of criminal activity, and failing to provide a credible account to a police officer. The Court reasoned that the statute did not clearly define the prohibited conduct, granted excessive discretion to the police, and potentially violated the Fourth and Fifth Amendments by allowing arrests based on suspicion rather than probable cause. This decision underscores the importance of clear and specific language in criminal statutes to protect individual liberties.

Facts

The defendant was observed by a police officer loitering in a public place. The officer, finding the defendant’s presence suspicious, questioned him about his conduct and purposes. Unsatisfied with the defendant’s response, the officer arrested him for violating Penal Law § 240.35(6), which prohibits loitering without apparent reason under circumstances that justify suspicion of criminal activity and failing to provide a reasonably credible account to a peace officer.

Procedural History

The defendant was convicted at the trial level. The conviction was appealed, arguing that the loitering statute was unconstitutionally vague. The New York Court of Appeals reversed the conviction, finding the statute unconstitutional on its face.

Issue(s)

Whether New York Penal Law § 240.35(6), which prohibits loitering “in or about a place without apparent reason” under circumstances that “justify suspicion” of criminal activity, is unconstitutionally vague in violation of due process.

Holding

Yes, because the statute is not informative on its face and utterly fails to give adequate notice of the behavior it forbids, and because it places virtually unfettered discretion in the hands of the police, thereby encouraging arbitrary and discriminatory enforcement.

Court’s Reasoning

The Court found the statute unconstitutionally vague for several reasons. First, it failed to provide adequate notice of the prohibited conduct. The phrase