People v. Uplinger, 58 N.Y.2d 936 (1983)
A statute prohibiting loitering for the purpose of soliciting deviate sexual intercourse is unconstitutional when the conduct it seeks to prevent (consensual sodomy) has been decriminalized.
Summary
The New York Court of Appeals held that a statute prohibiting loitering for the purpose of soliciting deviate sexual intercourse was unconstitutional. The court reasoned that since consensual sodomy had been decriminalized, the state no longer had a legitimate interest in punishing conduct anticipatory to that act. The majority opinion reasoned that the loitering statute was essentially a companion to the sodomy statute, and therefore, suffered the same constitutional deficiencies. The dissent argued that the statute was a valid effort to regulate public conduct and prevent harassment, regardless of the legality of the intended private act.
Facts
Two defendants, Uplinger and Butler, were arrested and charged under New York Penal Law § 240.35(3), which prohibits loitering in a public place for the purpose of soliciting another person to engage in deviate sexual intercourse or other sexual behavior of a deviate nature. Specific details of their conduct leading to arrest are not emphasized in the majority opinion, but the dissent notes that Butler was flagging down cars and making overt offers to sell sexual favors.
Procedural History
The defendants were convicted at the trial level. The cases reached the New York Court of Appeals, which reversed the convictions, holding the statute unconstitutional. The court did not provide specific details of lower court rulings.
Issue(s)
Whether a statute prohibiting loitering for the purpose of soliciting deviate sexual intercourse is constitutional when the conduct ultimately contemplated (consensual sodomy) is no longer criminal.
Holding
No, because the state has no legitimate interest in punishing conduct anticipatory to an act (consensual sodomy) that is no longer criminal. The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy; inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, the court perceived “no basis upon which the State may continue to punish loitering for that purpose.”
Court’s Reasoning
The court reasoned that the loitering statute was a companion statute to the consensual sodomy statute, which the court had previously struck down as unconstitutional in People v. Onofre, 51 N.Y.2d 476 (1980). The court in Onofre held that the state could not prohibit consensual sexual conduct between adults in private. Because the loitering statute targeted conduct intended to lead to such consensual acts, the court found it to be similarly unconstitutional. The majority opinion emphasizes that since the ultimate act is now legal, the state lacks a basis to punish actions leading up to it. The dissent strongly disagreed, arguing that the statute was a valid exercise of the state’s police power to regulate public conduct and prevent harassment. The dissent referenced the Model Penal Code, which supports statutes that prohibit public solicitation of deviate sexual relations to prevent public nuisance and harassment. The dissent also argued that the majority implicitly applied the overbreadth doctrine inappropriately and that a narrower interpretation of the statute (requiring an overt act of solicitation) would render it constitutional. The dissent argued that the statute was not vague because it sufficiently informs a person of ordinary intelligence of the prohibited conduct. The dissent further noted that the statute bears a reasonable relation to the public good by protecting individuals from harassment in public places. Ultimately, the majority focused on the decriminalization of consensual sodomy as the controlling factor, while the dissent emphasized the state’s interest in regulating public behavior.