vagueness challenge in New York

2016With these general principles in mind, we analyze this vagueness challenge using a two-part test (Stuart, 100 NY2d at 420 ; People v Nelson, 69 NY2d 302, 307 [1987]; People v Smith, 44 NY2d 613 , 618 [1978]).

2010Moreover, “except in rare circumstances not relevant here, a vagueness challenge must be addressed to the facts before the court” (People v Nelson, 69 NY2d 302, 308 [1987]).

2016With these general principles in mind, we analyze this vagueness challenge using a two-part test (Stuart, 100 NY2d at 420 ; People v Nelson, 69 NY2d 302, 307 [1987]; People v Smith, 44 NY2d 613 , 618 [1978]).

2015A vagueness challenge to a zoning ordinance requires the application of a two-pronged test, to determine first, whether the ordinance “provide [s] sufficient notice of what conduct is prohibited,” and second, whether it is “written in such a manner as to permit or encourage arbitrary and discriminatory enforcement” (People v Bright, 71 NY2d 376, 382 [1988]). “[A] facial challenge requires the court to examine the words of the statute on a cold page and without reference to the defendant’s conduct” (People v Stuart, 100 NY2d 412, 421 [2003]; see e.g.

2022General Business Law § 396-r, which authorizes the AG to bring a civil proceeding to seek injunctive relief, restitution, and a civil fine, is an economic regulation, not a penal or criminal-type statute, and we therefore subject it to a relaxed-vagueness standard. "[E]conomic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action" ( Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 U

2022General Business Law § 396-r, which authorizes the AG to bring a civil proceeding to seek injunctive relief, restitution, and a civil fine, is an economic regulation, not a penal or criminal-type statute, and we therefore subject it to a relaxed-vagueness standard. "[E]conomic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action" ( Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 U

2025Defendant's facial constitutional challenges to the probation condition under the First Amendment and the vagueness doctrine are unpreserved, and we decline to review them in the interest of justice ( see People v Baumann & Sons Buses, Inc. , 6 NY3d 404, 408 [2006]).

2025Defendant's facial constitutional challenges to the probation condition under the First Amendment and the vagueness doctrine are unpreserved, and we decline to review them in the interest of justice ( see People v Baumann & Sons Buses, Inc. , 6 NY3d 404, 408 [2006]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

2015A vagueness challenge to a zoning ordinance requires the application of a two-pronged test, to determine first, whether the ordinance “provide [s] sufficient notice of what conduct is prohibited,” and second, whether it is “written in such a manner as to permit or encourage arbitrary and discriminatory enforcement” (People v Bright, 71 NY2d 376, 382 [1988]). “[A] facial challenge requires the court to examine the words of the statute on a cold page and without reference to the defendant’s conduct” (People v Stuart, 100 NY2d 412, 421 [2003]; see e.g.

2007Under the first prong, a court must determine whether the statute provides a person of “ordinary intelligence” with “sufficient notice of what conduct is prohibited.” (People v Bright, 71 NY2d 376, 382 [1988]; see also People v Nelson, 69 NY2d 302, 307 [1987].) If a statute “ ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices,’ ” it will survive a vagueness challenge even if it contains language that is “inherently imprecise.” (People v Shack, 86 NY2d 529, 538 [1995], quoting United States v Petrillo, 332 US 1, 8 [1947]; see

2026Defendant's valid waiver of his right to appeal forecloses review of his as-applied constitutional challenges to the probation conditions under the First Amendment and the vagueness doctrine of due process under the Fifth and Fourteenth Amendments ( see People v Johnson , — NY3d —, 2025 NY Slip Op 06528 *2 [2025]; People v Lowndes , 239 AD3d 574, 575 [1st Dept 2025], lv denied 44 NY3d 1012 [2025]).

2026Defendant's valid waiver of his right to appeal forecloses review of his as-applied constitutional challenges to the probation conditions under the First Amendment and the vagueness doctrine of due process under the Fifth and Fourteenth Amendments ( see People v Johnson , — NY3d —, 2025 NY Slip Op 06528 *2 [2025]; People v Lowndes , 239 AD3d 574 , 575 [1st Dept 2025], lv denied 44 NY3d 1012 [2025]).

2025"At worst (or best, depending on one's perspective) this is an instance in which two constructions of [Penal Law provisions] are plausible, and to that end 'the one more favorable to the defendant should be adopted in accordance with the rule of lenity' " ( Thompson , 26 NY3d at 687—688, quoting People v Golb , 23 NY3d 455, 468 [2014] [internal quotation marks omitted]).

2025"At worst (or best, depending on one's perspective) this is an instance in which two constructions of [Penal Law provisions] are plausible, and to that end 'the one more favorable to the defendant should be adopted in accordance with the rule of lenity' " ( Thompson , 26 NY3d at 687—688, quoting People v Golb , 23 NY3d 455, 468 [2014] [internal quotation marks omitted]).

2000Indeed, by deliberately using maximally broad language — “in any way resembl[es]” — the Administrative Code section eschews “objective, ascertainable standards” and permits each individual officer to “apply the statute based upon [his or her] own personal ideas of right and wrong.” (People v Foley, 94 NY2d 668, 682 [2000], citing People v Bright, 71 NY2d, supra, at 383; People v New York Trap Rock Corp., 57 NY2d 371, 376 [1982].) As the Court of Appeals said in Bright (at 383): “The other prong of the test, which requires that a penal law not permit arbitrary or discriminatory enforcement is,

2000“A vagueness challenge to an administrative regulation raises the question of whether a reasonable person subject to the regulatory standard would comprehend what conduct was being prohibited” (Matter of Choe v Axelrod, 141 AD2d 235, 239 ). “[Regulations must give ‘sufficiently definite warning * * * when measured by common understanding and practices’ * * * and articulate an objective standard which governs the exercising of the discretion and affords the possibility of meaningful judicial review” (Matter of Slocum v Berman, 81 AD2d 1014, 1015 [quoting United States v Petrillo, 332 US 1, 7-8

2003Indeed, as the Supreme Court said when considering a vagueness challenge in Chapman v United States, “First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied to the facts of this case” ( 500 US at 467 ; see also New York v Ferber, 458 US 747, 768-773 [1982]; Broadrick v Oklahoma, 413 US 601, 610-616 [1973]).

2003Indeed, as the Supreme Court said when considering a vagueness challenge in Chapman v United States, “First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied to the facts of this case” ( 500 US at 467 ; see also New York v Ferber, 458 US 747, 768-773 [1982]; Broadrick v Oklahoma, 413 US 601, 610-616 [1973]).

2006A stringent vagueness test applies to a law that interferes with the right of free speech” (Video Software Dealers Assn. v Webster, 968 F2d 684, 689-690 [8th Cir 1992] [citations omitted], quoting Grayned v City of Rockford, 408 US 104 , 108 [1972], and citing Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 US 489, 498 [1982]).

2003(Grayned, supra at 110 .) Analyzing Penal Law § 220.45, as defined within Public Health Law § 3381, in light of the vagueness doctrine, the court finds that the statute is not unconstitutionally vague.

2007We see no reason to depart from our holding in Foley that the statute is not unconstitutionally vague ( 94 NY2d at 680-682 [upholding section 235.22 against a vagueness challenge to subdivision (2)]).

2007We see no reason to depart from our holding in Foley that the statute is not unconstitutionally vague ( 94 NY2d at 680-682 [upholding section 235.22 against a vagueness challenge to subdivision (2)]).

2025And much like the vagueness doctrine, it is founded on 'the tenderness of the law for the rights of individuals' to fair notice of the law 'and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department'" ( United States v Davis , 588 US 445, 464 [2019] [some internal citations omitted]).

2025And much like the vagueness doctrine, it is founded on 'the tenderness of the law for the rights of individuals' to fair notice of the law 'and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department'" ( United States v Davis , 588 US 445, 464 [2019] [some internal citations omitted]).

2022An economic regulation is void when it is[*14]"so vague and indefinite as really to be no rule or standard at all" ( Ruiz v Commissioner of Dept. of Transp. of City of New York , 679 F Supp 341, 351 [SD NY 1987] [internal quotations omitted], affd 858 F2d 898 [2d Cir 1988]; see A.B.

2022An economic regulation is void when it is[*14]"so vague and indefinite as really to be no rule or standard at all" ( Ruiz v Commissioner of Dept. of Transp. of City of New York , 679 F Supp 341, 351 [SD NY 1987] [internal quotations omitted], affd 858 F2d 898 [2d Cir 1988]; see A.B.

2005However, as noted in People v First Meridian Planning Corp. ( 86 NY2d 608 [1995]), the vagueness doctrine does not judge statutes in the abstract, but rather in the “animating context of well-defined usage . . . and . . . court construction which determines its meaning” (People v First Meridian Planning, supra at 622, quoting Beauharnais v Illinois, 343 US 250, 253 [1952]).

2005However, as noted in People v First Meridian Planning Corp. ( 86 NY2d 608 [1995]), the vagueness doctrine does not judge statutes in the abstract, but rather in the “animating context of well-defined usage . . . and . . . court construction which determines its meaning” (People v First Meridian Planning, supra at 622, quoting Beauharnais v Illinois, 343 US 250, 253 [1952]).

2000First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement (see, Kolender v Lawson, 461 US 352, 357 ; Grayned v City of Rockford, 408 US 104, 108-109 ; Papachristou v City of Jacksonville, 405 US 156, 162 ; People v Nelson, 69 NY2d 302, 307 ; People v Smith, 44 NY2d 613 , 618; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 234 ; People v Heller, 33 NY2d 314, 328 ; People v Berck, 32 NY2d 567, 569; People v Pagnotta, supra

1987(See also, People v Berck, 32 NY2d 567, 569-570 [1973]; People v Clark, 135 Misc 2d 22 [App Term, NY County]; People v Velazquez, 77 Misc 2d 749, 760 , supra.) In People v Velazquez (supra), the court also pointed to another crucial factor to be considered in the type of situation presented by the instant case, a factor which, indeed, transgresses the issues of vagueness and of selective enforcement (77 Misc 2d, supra, at 752): "Although the void-for-vagueness doctrine has traditionally been viewed as concerned principally with the problem of fair notice to the potential criminal actor, 'perha

2000First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement (see, Kolender v Lawson, 461 US 352, 357 ; Grayned v City of Rockford, 408 US 104, 108-109 ; Papachristou v City of Jacksonville, 405 US 156, 162 ; People v Nelson, 69 NY2d 302, 307 ; People v Smith, 44 NY2d 613 , 618; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 234 ; People v Heller, 33 NY2d 314, 328 ; People v Berck, 32 NY2d 567, 569; People v Pagnotta, supra

2000The requirement that a penal law not permit arbitrary or discriminatory enforcement is, perhaps, the more important aspect of the vagueness doctrine (Kolender v Lawson, supra, at 358; People v Bright, supra, at 383 ).

2016First, we must determine “whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden” (Stuart, 100 NY2d at 420 [internal quotation marks omitted], citing Nelson, 69 NY2d at 307 ; see also Smith, 44 NY2d at 618, quoting United States v Harriss, 347 US 612, 617 [1954]).

1974A penal law is void for vagueness when it ‘1 fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden (United States v. Harriss, 347 U. S. 612, 617 ; Papachristou v. City of Jacksonville, 405 U. S. 156,162 .) Although the void-for-vagueness doctrine has traditionally been viewed as concerned principally with the problem of fair notice to the potential criminal actor, ‘ ‘ perhaps the most meaningful aspect of the vagueness doctrine is not actual notice but the other principal element of the doctrine — the requirement that a legislature establish min

2005However, as noted in People v First Meridian Planning Corp. ( 86 NY2d 608 [1995]), the vagueness doctrine does not judge statutes in the abstract, but rather in the “animating context of well-defined usage . . . and . . . court construction which determines its meaning” (People v First Meridian Planning, supra at 622, quoting Beauharnais v Illinois, 343 US 250, 253 [1952]).

1995Of special significance here, the vagueness doctrine does not adjudge the language of a criminal statute in the abstract, but rather in the "animating context of well-defined usage * * * and * * * court construction which determines its meaning” (Beauharnais v Illinois, 343 US 250, 253 ).

1996For example, a statute requiring mufflers to be maintained " 'to prevent any excessive or unusual noise’ ” withstood a vagueness challenge (People v Byron, 17 NY2d 64, 66 , supra).

1996The limited context was the operation of a motor vehicle, and it provided adequate definiteness to the otherwise vague terms " 'excessive’ ” and " 'unusual’ ”, the Byron Court ruling that "[w]hat is usual noise in the operation of a car has become common knowledge and anything in excess of that is excessive or unusual and any ordinary motorist should have no difficulty in ascertaining whether or not excessive or unusual noise accompanied the operation of [defendant’s] vehicle” (People v Byron, 17 NY2d 64, 67 , supra).

2022Courts use a two-part test to determine whether a statute or regulation is unconstitutionally vague (see Stephens; 28 NY3d at 312-313 ; People v Stuart, 100 NY2d 412, 420 [2003]; Ulster Home Care, 96 NY2d at 509 [regulation]; People v Nelson, 69 NY2d 302, 307 [1987]).

2019The court should have rejected this vagueness challenge, since section 228.2(c) "is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden," and "the enactment provides officials with clear standards for enforcement so as to avoid resolution on an ad hoc and subjective basis" ( People v Stephens , 28 NY3d 307, 312 [2016]).

2007Under the first prong, a court must determine whether the statute provides a person of “ordinary intelligence” with “sufficient notice of what conduct is prohibited.” (People v Bright, 71 NY2d 376, 382 [1988]; see also People v Nelson, 69 NY2d 302, 307 [1987].) If a statute “ ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices,’ ” it will survive a vagueness challenge even if it contains language that is “inherently imprecise.” (People v Shack, 86 NY2d 529, 538 [1995], quoting United States v Petrillo, 332 US 1, 8 [1947]; see

2007Under the first prong, a court must determine whether the statute provides a person of “ordinary intelligence” with “sufficient notice of what conduct is prohibited.” (People v Bright, 71 NY2d 376, 382 [1988]; see also People v Nelson, 69 NY2d 302, 307 [1987].) If a statute “ ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices,’ ” it will survive a vagueness challenge even if it contains language that is “inherently imprecise.” (People v Shack, 86 NY2d 529, 538 [1995], quoting United States v Petrillo, 332 US 1, 8 [1947]; see

2001With respect to the first issue to be resolved, our courts have often said that the requirement that a penal statute provide adequate notice of the conduct it prohibits is to make certain that “citizens who desire to obey the statute will have no difficulty understanding it” and that no person be punished for conduct that could not have been reasonably understood as prohibited (Colten v Kentucky, 407 US 104, 110 [1972], quoting Colten v Commonwealth, 467 SW2d 374, 378 [1971]).

1995The vagueness doctrine is "not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited” (Colten v Kentucky, 407 US 104, 110 ).

2000“A vagueness challenge to an administrative regulation raises the question of whether a reasonable person subject to the regulatory standard would comprehend what conduct was being prohibited” (Matter of Choe v Axelrod, 141 AD2d 235, 239 ). “[Regulations must give ‘sufficiently definite warning * * * when measured by common understanding and practices’ * * * and articulate an objective standard which governs the exercising of the discretion and affords the possibility of meaningful judicial review” (Matter of Slocum v Berman, 81 AD2d 1014, 1015 [quoting United States v Petrillo, 332 US 1, 7-8

1988A vagueness challenge to an administrative regulation raises the question of whether a reasonable person subject to the regulatory standard would comprehend what conduct was being prohibited (see, Matter of Prusky v Webb, 134 AD2d 718, 721 ; Matter of Slocum v Berman, 81 AD2d 1014, 1015 , mot to dismiss appeal granted 54 NY2d 752 ).