THE PEOPLE &C., RESPONDENT, v. RAMONA SANTORELLI AND MARY LOU SCHLOSS,
APPELLANTS, ET AL., DEFENDANTS.
80 N.Y.2d 875, 600 N.E.2d 232, 587 N.Y.S.2d 601 (1992).
July 7, 1992
CoCt No. 115
Decided July 7, 1992
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Herald Price Fahringer, for Appellant Santorelli.
Donald W. O'Brien, Jr., for Appellant Schloss.
Elizabeth Clifford, for Respondent.
MEMORANDUM:
The order of Monroe County Court should be reversed and the
informations dismissed.
Defendants' claim that Penal Law § 245.01 offends the equal protection
clauses of the Federal and State Constitutions was expressly passed
upon by County Court, and its disposition of that claim was a
necessary basis for its order of reversal of the Rochester City Court
which had dismissed the informations (see, People v Craft, 149 Misc 2d
223 (Monroe Co Ct); People v Craft, 134 Misc 2d 121 (Roch City Ct)).
We, therefore, reject the People's argument that under CPL
470.35(2)(a) the Court of Appeals lacks jurisdiction to pass upon that
claim.
Defendants were arrested for violating Penal Law § 245.01 (exposure of
a person) when they bared "that portion of the breast which is below
the top of the areola" in a Rochester public park. The statute, they
urge, is discriminatory on its face since it defines "private or
intimate parts" of a woman's but not a man's body as including a
specific part of the breast. That assertion being made, it is settled
that the People then have the burden of proving that there is an
important government interest at stake and that the gender
classification is substantially related to that interest (see,
Mississippi University for Women v Hogan, 458 US 718, 725). In this
case, however, the People have made no attempt below and make none
before us to demonstrate that the statute's discriminatory effect
serves an important governmental interest or that the classification
is based on a reasoned predicate. Moreover, the People do not dispute
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. RAMONA SANTORELLI AND MARY LOU SCHLOSS,
APPELLANTS, ET AL., DEFENDANTS.
This memorandum is uncorrected and subject to revision before publication in the New York
Herald Price Fahringer, for Appellant Santorelli.
Elizabeth Clifford, for Respondent.
The order of Monroe County Court should be reversed and the informations dismissed.
Defendants' claim that Penal Law § 245.01 offends the equal protection clauses of the Federal
Defendants were arrested for violating Penal Law § 245.01 (exposure of a person) when they
The statute, they urge, is discriminatory on its face since it defines "private or intimate
That assertion being made, it is settled that the People then have the burden of proving that
Despite the People's virtual default on the constitutional issue, we must construe a statute,
Though the statute and the rationale for that decision are different, we believe that
Simply put, the focus of the legislation was to proscribe nude sunbathing by ordinary
there is absolutely no support in the legislative history for such a construction.
One of the most important purposes to be served by the equal protection clause is to ensure
They further contend that to the extent that many in our society may regard the uncovered
See, Alaska Stat § 11.41.460; Cal Penal Code Ann § 314; Col Rev Stat § 18-7-302; Idaho Code §
ode Ann § 21.08; Utah Code Ann § 76-9-702; Wisc Stat § 944.20; see also Robins v Los Angeles
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