The defendant was issued three summonses on December 18, 2005. When she failed to appear for arraignment, the People requested the court to issue an arrest warrant for her appearance. In deciding whether or not to issue the warrant, the court must determine whether the summonses in question are legally sufficient to proceed with prosecution. The offenses charged in the summonses will be analyzed seriatum.
On the first summons, the defendant is charged with violation of the Penal law, which states that a person is guilty of loitering when he loiters or remains in a public place for the purpose of engaging, or soliciting another person to engage, in oral sexual conduct, anal sexual abuse conduct or other sexual behavior of a deviate nature. In the portion of the summons in question the police officer wrote that she was in a known prostitution prone location and was observed soliciting sexual favors.
This section of the Penal law was challenged on Constitutional grounds. In that case the court said that this section of the statute must be viewed as a companion statute to the consensual sodomy statute which criminalized acts of deviate sexual intercourse between consenting adults. Previously, in invalidating that sodomy law, the court held that the State may not constitutionally prohibit sexual behavior conducted in private between consenting adults.
Based on the foregoing, the court must dismiss the summons based on the Penal law as being constitutionally unenforceable.
Another defendant was also issued a summons pursuant to the Penal Law, Loitering for the Purpose of Engaging in a Prostitution Offense. Subsection of the statute states that any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution or of patronizing a prostitute shall be guilty of a violation.
The document with which the defendant was served is that which is commonly known as a universal summons. In order to be facially sufficient, a universal summons must satisfy the requirements applicable to information, containing non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offense charged, and must establish every element of the offense.
A summons for a violation of the Penal Law must detail the prohibited conduct by the delineation of specific conduct, in addition to the loitering, which the arresting officer must observe. Conclusory factual allegations are insufficient and render the accusatory instrument defective.
Several courts have indicated the type of factual information that must be included in a summons for Loitering for the Purpose of Prostitution to render the instrument facially sufficient. Such factors include that the police officer observed the defendant remain or wander about in a public place. Further, the defendant was seen beckoning, stopping or repeatedly attempting to engage motorists or passers-by in conversation. The defendant was observed wandering in a known prostitution location for a period of time; and a description of the type of clothing worn by the individual engaging in such conduct.
In addition to the foregoing objective criteria, the summons may be sufficient if the arresting officer indicates a personal knowledge that an offense has been committed based on his or her experience or training.
In the instant case, none of the elements that would render this summons facially sufficient are present. The only description appearing on the document is a conclusory statement that the Defendant was loitering for the purpose of prostitution, with not a single factual basis indicated for that assumption. Further, none of the behavior mandated by the statute as an element of the offense has been alleged. Consequently, the summons must be dismissed as being facially insufficient to support a charge of Loitering for the Purpose of Engaging in a Prostitution Offense under the Penal Law.
People who engage in prostitution do so because they know that they can get away with the law. If you want to make sure that your community would be free from people who engage in prostitution as well as from those who patronize prostitutes, Stephen Bilkis and Associates can provide the Kings County Prostitution Attorney or the Kings County Patronizing Prostitution Lawyer.