unequivocal warning in New York

1969(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe , the court said: “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” ’ ” To similar effect, see United States v. Brewer ( 139 U. S. 278, 288 ); People v. Caswell-Massey Co., (6 N Y 2d 497); People v. Shifrin (301 N Y 445); People v. O’Gorman ( 274 N. Y. 284 ).

1964(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe the court said: “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” ’ (Italics supplied), and again, in the case of People v. Bene ( 288 N. Y. 318 ), the court, at page 323, said: ‘ Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457 ; Dieterich v. F

1964(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe the court said: “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” ’ (Italics supplied), and again, in the case of People v. Bene ( 288 N. Y. 318 ), the court, at page 323, said: ‘ Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457 ; Dieterich v. F

1957The citizen is entitled to an unequivocal warning before conduct on his part, which is malum in se, can be made the occasion of a deprivation of his liberty or property. ’ ” (People v. Phyfe, 136 N. Y. 554, 559 ; People v. Wallace & Co., 282 N. Y. 417 ; People v. Adamkiewicz, 298 N. Y. 176 ; Winters v. New York, 333 U. S. 507, 515-516 .) Section 33 of the Village Ordinances of the Village of Spring-Valley sets no specific standards of conduct by which a defendant is enabled to judge in advance whether a given act is an offense, and the section further creates a situation where the same act may

1979As the court stated in People v Shakun ( 251 NY 107, 113-114 ): "It is well settled that a criminal statute should narrowly be construed; that acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal. [Citation omitted.] In People v Phyfe [ 136 NY 554 ] the court said: 'The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.’ ” However, "this prohibition against excessive vagueness

1964(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe the court said: “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” ’ (Italics supplied), and again, in the case of People v. Bene ( 288 N. Y. 318 ), the court, at page 323, said: ‘ Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457 ; Dieterich v. F

1972The evidence here clearly shows that the defendants were not within the purpose, intent and coverage of the ordinance.” Also, see, People v. Vetri ( 309 N. Y. 401, 406 ) where the court cited with approval a statement appearing in the opinion of People v. Phyfe ( 136 N. Y. 554 ): “ ‘ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.’” For the reasons above given we conclude that the determination of the Parking Violations Bureau, finding the petitioner guilty of illegal p

1959(People v. Vetri, 309 N. Y. 401 .) “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property ” (People v. Phyfe, 136 N. Y. 554, 559 ).

1957The citizen is entitled to an unequivocal warning before conduct on his part, which is malum in se, can be made the occasion of a deprivation of his liberty or property. ’ ” (People v. Phyfe, 136 N. Y. 554, 559 ; People v. Wallace & Co., 282 N. Y. 417 ; People v. Adamkiewicz, 298 N. Y. 176 ; Winters v. New York, 333 U. S. 507, 515-516 .) Section 33 of the Village Ordinances of the Village of Spring-Valley sets no specific standards of conduct by which a defendant is enabled to judge in advance whether a given act is an offense, and the section further creates a situation where the same act may

1954The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” (People v. Phyfe, 136 N. Y. 554, 559 ; People v. Shifrin, 301 N. Y. 445, 447 ; People v. Wallace & Co., 282 N. Y. 417 ; People v. Adamkiewicz, 298 N. Y. 176 ; Winters v. New York, 333 U. S. 507, 515-516 .) Accordingly, unless the defendant’s act is a violation of the strict letter of the Vehicle and Traffic Law, he may not be declared a misdemeanant and be stigmatized as a criminal with all of the lifetime consequences th

1964(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe the court said: “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” ’ (Italics supplied), and again, in the case of People v. Bene ( 288 N. Y. 318 ), the court, at page 323, said: ‘ Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457 ; Dieterich v. F

1956The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property. * * * We are not permitted to speculate as to the motive or design of the lawmakers or to search for a hidden meaning or an unexpressed purpose in the enactment.” (See, also, People v. Shifrin, 301 N. Y. 445 ; People v. Shakum, supra; People v. Benc, 288 N. Y. 318 ; Todd v. United States, 158 U. S. 278 .) The guilt of the defendant has not been established beyond a reasonable doubt.

1957The citizen is entitled to an unequivocal warning before conduct on his part, which is malum in se, can be made the occasion of a deprivation of his liberty or property. ’ ” (People v. Phyfe, 136 N. Y. 554, 559 ; People v. Wallace & Co., 282 N. Y. 417 ; People v. Adamkiewicz, 298 N. Y. 176 ; Winters v. New York, 333 U. S. 507, 515-516 .) Section 33 of the Village Ordinances of the Village of Spring-Valley sets no specific standards of conduct by which a defendant is enabled to judge in advance whether a given act is an offense, and the section further creates a situation where the same act may

1954The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” (People v. Phyfe, 136 N. Y. 554, 559 ; People v. Shifrin, 301 N. Y. 445, 447 ; People v. Wallace & Co., 282 N. Y. 417 ; People v. Adamkiewicz, 298 N. Y. 176 ; Winters v. New York, 333 U. S. 507, 515-516 .) Accordingly, unless the defendant’s act is a violation of the strict letter of the Vehicle and Traffic Law, he may not be declared a misdemeanant and be stigmatized as a criminal with all of the lifetime consequences th

2025Moreover, since the proof [*2]of the defendant's guilt was overwhelming, and there was no reasonable possibility that the purported error in the charge might have contributed to the defendant's conviction as, among other things, the court gave a strong and unequivocal instruction regarding the People's burden of proof, any error in the court's charge with regard to the presumption of innocence was harmless beyond a reasonable doubt ( see People v Reid , 291 AD2d 416 ; People v Creech , 101 AD2d 753, 754 ).

1998The failure to instruct the jury on the presumption of innocence constitutes harmless error; proof of defendant’s guilt is overwhelming, and the court gave a strong and unequivocal instruction regarding the People’s burden of proof (see, People v Guzman, 164 AD2d 828 ; People v Creech, 101 AD2d 753, 754 ).

1973It is a principle of due process, the Supreme Court declared in Papachristou v. City of Jacksonville ( 405 U. S. 156,162 ), that a penal law is void for vagueness when it “ ‘ 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 ”.

1972Referring to this portion of the Jacksonville ordinance, Justice Douglas, writing for the Supreme Court in Papachristou held (pp. 162-163): ‘ ‘ This ordinance is void for vagueness, both in the sense that it ‘ fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute/ United States v. Harriss, 347 U. S. 612, 617 , and because it encourages arbitrary and erratic arrests and convictions.

1969(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe , the court said: “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” ’ ” To similar effect, see United States v. Brewer ( 139 U. S. 278, 288 ); People v. Caswell-Massey Co., (6 N Y 2d 497); People v. Shifrin (301 N Y 445); People v. O’Gorman ( 274 N. Y. 284 ).

1955(People v. O’Gorman, 274 N. Y. 284, 287 .) As pointed out in United States v. Brewer ( 139 U. S. 278, 288 ): “ Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. * * * Before a man can be punished, his case must be plainly and unmistakably within the statute.” If the term ‘ ‘ wages ’ ’ as used in the Labor Law is to be construed according to its fair import, “ vacation pay ” cannot be embraced in that term by implication.

1969(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe , the court said: “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” ’ ” To similar effect, see United States v. Brewer ( 139 U. S. 278, 288 ); People v. Caswell-Massey Co., (6 N Y 2d 497); People v. Shifrin (301 N Y 445); People v. O’Gorman ( 274 N. Y. 284 ).

1955(People v. O’Gorman, 274 N. Y. 284, 287 .) As pointed out in United States v. Brewer ( 139 U. S. 278, 288 ): “ Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. * * * Before a man can be punished, his case must be plainly and unmistakably within the statute.” If the term ‘ ‘ wages ’ ’ as used in the Labor Law is to be construed according to its fair import, “ vacation pay ” cannot be embraced in that term by implication.

1969Consonant with the foregoing, and under the guiding principle that “ courts may not by forced construction create a crime ” (People v. Stoll, 242 N. Y. 453, 463 ), it is our conclusion that the defendants have not committed any act within the condemnation of the ordinance under review.

1964S. 2d 345, 348-349) the court wrote: “ 1 A penal statute should use language which is clear so that all who read it may know what act is forbidden. * * * The Legislature may in proper case make an act criminal which but for the statute would have been lawful; the courts may not by forced construction create a crime.’ People v. Stoll, 242 N. Y. 453 , at page 463, 152 N. E. 259 at page 262.” In People v. Dioguardi (8 A D 2d 426, 434, revd. on other grounds 8 N Y 2d;260) the opinion of the court states: “ In construing penal statutes ‘ according to the fair import of their terms ’, as we are dire

1964(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe the court said: “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” ’ (Italics supplied), and again, in the case of People v. Bene ( 288 N. Y. 318 ), the court, at page 323, said: ‘ Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457 ; Dieterich v. F

1954(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe the court said: ' The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.’ ” (Italics supplied), and again, in the case of People v. Benc ( 288 N. Y. 318 ), the court, at page 323, said: “ Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457 ; Dieterich v. F

1964(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe the court said: “ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” ’ (Italics supplied), and again, in the case of People v. Bene ( 288 N. Y. 318 ), the court, at page 323, said: ‘ Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457 ; Dieterich v. F

1954(People v. Phyfe, 136 N. Y. 554 ; Burks v. Bosso, 180 N. Y. 341 .) In People v. Phyfe the court said: ' The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.’ ” (Italics supplied), and again, in the case of People v. Benc ( 288 N. Y. 318 ), the court, at page 323, said: “ Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457 ; Dieterich v. F

1962(See Teresta v. City of New York, 304 N. Y. 440 ; Purdy v. City of New York, 193 N. Y. 521 ; Matter of Figueron v. City of New York, 279 App. Div. 771 ; Sweeney v. City of New York, 225 N. Y. 271, 273 ; Greguski v. Town of Oyster Bay, 19 Misc 2d 763 ; Bailey v. Village of Port Leyden, 31 Misc 2d 310 .) The court is aware of Thrall v. Cuba Vil. ( 88 App. Div. 410 [4th Dept., 1903]) where the court held “ that each require ment must have been met before the plaintiff may commence his action at all.” That case may be distinguished in that no facts were presented there for a waiver or an estoppel

1952In Sweeney v. City of New York (supra, 225 N. Y. 271, 273 ) the court said, Avith respect to a predecessor provision of section 50-e, that the statute “ is not a trap to catch the unwary or the ignorant.” In reaching our present conclusion, we but reaffirm that view.

1962(See Teresta v. City of New York, 304 N. Y. 440 ; Purdy v. City of New York, 193 N. Y. 521 ; Matter of Figueron v. City of New York, 279 App. Div. 771 ; Sweeney v. City of New York, 225 N. Y. 271, 273 ; Greguski v. Town of Oyster Bay, 19 Misc 2d 763 ; Bailey v. Village of Port Leyden, 31 Misc 2d 310 .) The court is aware of Thrall v. Cuba Vil. ( 88 App. Div. 410 [4th Dept., 1903]) where the court held “ that each require ment must have been met before the plaintiff may commence his action at all.” That case may be distinguished in that no facts were presented there for a waiver or an estoppel

1960In dealing with substantive provisions of law, that is, section 50-e of the General Municipal Law, the court held, in Teresta v. City of New York ( 304 N. Y. 440, 442-443 ), that there was an unequivocal waiver as well as elements of estoppel.

1956The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property. * * * We are not permitted to speculate as to the motive or design of the lawmakers or to search for a hidden meaning or an unexpressed purpose in the enactment.” (See, also, People v. Shifrin, 301 N. Y. 445 ; People v. Shakum, supra; People v. Benc, 288 N. Y. 318 ; Todd v. United States, 158 U. S. 278 .) The guilt of the defendant has not been established beyond a reasonable doubt.

1954The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” (People v. Phyfe, 136 N. Y. 554, 559 ; People v. Shifrin, 301 N. Y. 445, 447 ; People v. Wallace & Co., 282 N. Y. 417 ; People v. Adamkiewicz, 298 N. Y. 176 ; Winters v. New York, 333 U. S. 507, 515-516 .) Accordingly, unless the defendant’s act is a violation of the strict letter of the Vehicle and Traffic Law, he may not be declared a misdemeanant and be stigmatized as a criminal with all of the lifetime consequences th

1956The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property ’ ” (People v. Harms, 308 N. Y. 35, 39 ; People v. Phyfe, 136 N. Y. 554, 559 ); and the sufficiency of such warning must be measured by common understanding and practices (Jordan v. De George, 341 U. S. 223, 231-232 ; Connolly v. General Const. Co., 269 U. S. 385, 391 ).

1955The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.’ ” (People v. Harms, supra.) On the civil side the rule is equally plain and definite.

2025Moreover, since the proof [*2]of the defendant's guilt was overwhelming, and there was no reasonable possibility that the purported error in the charge might have contributed to the defendant's conviction as, among other things, the court gave a strong and unequivocal instruction regarding the People's burden of proof, any error in the court's charge with regard to the presumption of innocence was harmless beyond a reasonable doubt ( see People v Reid , 291 AD2d 416 ; People v Creech , 101 AD2d 753, 754 ).

2017Regis Mohawk Educ. & Community Fund, 86 NY2d at 563-564 ; American Indian Agr.

2016The jury convicted defendant of all charges. *624 The Appellate Division, with one Justice dissenting, reversed the judgment on the ground that the trial court had abused its discretion in relieving Fisher ( 124 AD3d 95 [1st Dept 2014]).

2002In any event, the failure to instruct the jury on the presumption of innocence was harmless, since the proof of the defendant’s guilt was overwhelming, and the court gave a strong and unequivocal instruction regarding the People’s burden of proof (see, People v Creech, 60 NY2d 895 ; People v Ponder, 266 AD2d 826 ; People v Adams, 247 AD2d 819 ).