Marshall L. Brenner and Gary E. Lane for appellant.

John R. King, District Attorney (Bridget R. Rahilly and Jennifer L. VanTuyl of counsel), for respondent.

Warren S. Radler and Kenneth F. Astarita for Twin Fair Distributors Corp., amicus curiae.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES and COOKE concur with Judge WACHTLER; Judge FUCHSBERG concurs in a separate opinion.

279*279WACHTLER, J.

We have before us once again the problem presented by what are commonly called the Sunday Blue Laws. And while the notion of a quiet Sunday is unquestionably 280*280 valid in principle, we believe that two of the sections challenged here are constitutionally defective. We refer specifically to the sections dealing with the prohibition against public sales and the forfeiture provision of the statute (General Business Law, §§ 9, 12).^[1] Due to the gallimaufry of exceptions which has obliterated any natural nexus between section 9 and the salutory purpose of the Sabbath Laws and the pervasive ambiguity of section 12 we declare both of these sections unconstitutional.

There is no dispute as to the facts. Louis Fratto, an employee in a local pharmacy, was charged with Sabbath breaking by virtue of selling a ceramic bank, merchandise not specifically exempted from the general closing mandate of the Blue Laws (General Business Law, § 9).^[2] The trial court dismissed the information on the grounds that the forfeiture and enforcement provisions of the statute were unenforceable by reason of vagueness, ambiguity and inconsistency (General Business Law, §§ 4, 12). A divided Appellate Term reversed on the law and reinstated the information. The dissenter found the statute an unconstitutional anachronism the purpose of which has been completely frustrated by the proliferation of arbitrary and haphazard exceptions.

On appeal to our court, both sides raise the classic arguments. The appellant contends that the crazyquilt exceptions to the general closing directive render section 9 of the statute unconstitutional due to the absence of a rational basis to accomplish the avowed purpose of the law. The State responds by raising the presumption of constitutionality and though conceding the imperfections of section 9, argues that the Legislature should be afforded a wide degree of latitude in delineating those activities which are permissible.

Before proceeding to a discussion of the merits it should be noted that the present Sabbath Laws (General Business Law, art 2) are the product of centuries of evolutionary mutation. Thus, a cursory review of their history would be appropriate in order to set our holding, as well as the interrelationship among the various provisions, in perspective.

281*281There is little doubt that these laws are clearly religious in origin being derived from the concise directive of the Old Testament that on the seventh day no work shall be done (Exodus, XXXI, 14-15). As a precept of civil government, however, the Sunday Laws are over 16 centuries old having been originated by the Roman Emperor Constantine in 321 AD who ordered all Judges and inhabitants of cities to rest on Sunday. Similar legislation appears in the laws of the Holy Roman Empire and in Saxon laws (28 A&E Encyc 390). Although the English common law contained no general ban on Sunday activity aside from the prohibition against judicial proceedings, more expansive Sunday Laws were passed at an early date (29 Chas II, ch 7) and became the basis for similar legislation in this Country. The first Sabbath Laws in America were enacted in Virginia in 1614, some three years before the Pilgrims landed at Plymouth Rock (10 Va L Reg 64; 28 A &E Encyc 390). Most of the colonies, including New York, followed suit. The earliest law in force in this State implying an obligation to observe the Sabbath was promulgated by the Dutch Burgomasters of Amsterdam in 1656 (see People v Hoym, 20 How Prac 76) and was superseded by the Duke of York's laws when the Dutch relinquished control to the English in 1664.

The genesis of our present statute appears to have been the act of October 22, 1695 "an Act against profanation of the Lord's Day, called Sunday" which contains many provisions similar to those appearing in previous versions of the statute presently under consideration (Laws of the Colony of New York, 1695, ch 52). This act remained in effect during the Revolutionary War and was retained by the Constitution of 1777. It remained in force until 1788 when the first State Sabbath Law was enacted (Laws of New York, 1785-1788, ch 42). This law, entitled "An Act for suppressing immorality", cast the acts prohibited into four general categories: (1) travel, (2) labor or work, (3) sports and amusements, (4) business or occupation. Specifically the statute provided that on the first day of the week commonly called Sunday "there shall be no travelling, servile labouring, or working, (works of necessity and charity excepted) shooting * * * hunting or frequenting of tipling houses * * * and that no person shall cry, shew forth or expose to sale, any wares, merchandize, fruit, herbs, goods or chattels * * * except small meat and milk, and fish, before nine of the o'clock in the morning". This basic scheme which 282*282 is still apparent has been retained and expanded over the years.

The first revision occurred in 1813 and, while it effected no change, is significant for the notes compiled in the margin. These notes list the source material for the various provisions and clearly indicate that the prohibition against laboring has roots separate and distinct from the prohibition against public selling (L 1813, ch 24, margin notes; compare General Business Law, § 8, with § 9). Another indication of the dichotomy between these two categories is the applicability of an exception for "necessity and charity" with respect to the ban on Sunday labor and the absence of a similar exception for the public traffic provision (see, also, 37 Cycl, Sunday, III, C, 2). The historical distinction between these two concepts is important when ascribing meanings to similar provisions in successor statutes.

Although there were subsequent revisions effecting minor changes throughout the nineteenth century, New York's original Sabbath Law remained virtually unaltered until 1881. At that time the statute received a completely new format (which it still retains) and the previous sections which were embodied in the Penal Code^[3] were repealed (L 1881, Penal Code, tit X, § 259 et seq.). Under this revised scheme the main categories of Sabbath breaking were divided into separate sections, with two important changes. First, the ban on Sunday traveling was eliminated entirely. Second, the prohibition against servile labor was refined by the inclusion of a separate exception for trades, manufactures and mechanical employments (Penal Code of 1881, § 266). That the new section banning trades, 283*283 manufacturing and mechanical employments on Sundays was actually a parsing of the category prohibiting servile labor is apparent by the subsequent amendment excepting works of necessity provided they did not interfere with the repose of the community (L 1883, ch 358, § 3, amdg § 266 of the Penal Code of 1881). As previously noted this saving provision was only applicable to the labor prohibition and not the public traffic prohibition.

It is also interesting to note that with the 1881 revision the number of exceptions to the mandate against public selling more than doubled. Throughout the previous century the only commodities allowed to be sold were meats, milk and fish provided they were sold before 9:00 A.M. However, in addition to these foods the revised statute permitted, at any time of the day, the sale of food to be eaten on the premises where sold, drugs, medicines and surgical appliances (Penal Code of 1881, § 267). This marked the beginning of the proliferation of exceptions to the public selling prohibition which has since overwhelmed the statute.

After the turn of the century the Sabbath Laws were recodifed in a new penal law (L 1909, Penal Law, art 192, § 2140 et seq.). Those sections coming under the general heading of laboring or working were essentially unchanged. (Compare Penal Code of 1881, §§ 263, 266, with Penal Law of 1909, §§ 2143, 2146, respectively.) The provision dealing with public sports was relaxed considerably to reflect the change in the society. (Compare Penal Code of 1881, § 265, with Penal Law of 1909, § 2145.) Notably the section pertaining to public traffic was subjected to the further multiplication of exceptions. (Compare Penal Code of 1881, § 267, with Penal Law of 1909, § 2147.)

Aside from the public sports section which has been broadened substantially but is no longer relevant to our discussion, the remaining provisions present an interesting contrast. While the prohibitions dealing with laboring (presently General Business Law, §§ 5, 8) have experienced minimal change in the last century, the public traffic section (presently General Business Law, § 9) has been riddled with alterations.^[4] This 284*284 process of engrafting exceptions to the ban against Sunday selling gathered momentum and by 1967, when the statute was removed from the Penal Law and re-enacted as part of the General Business Law, the three original exceptions had swollen to several dozen and generated a corresponding increase in litigation. And certainly the recent amendments do not indicate that the stream of exceptions has abated. (See, e.g., L 1975, ch 759, § 1, permitting the public auction of thoroughbred, standardbred and quarter horse racehorses; L 1973, ch 995, § 1, permitting the sale of items of art and antiques.) The appellant's challenge to this section therefore is based on the resultant inconsistency, confusion and lack of perceptible scheme generated by this gallimaufrous section.

Our analysis of section 9 (General Business Law, § 9) leads to the inescapable conclusion that it no longer possesses the requisite rationality in light of its avowed purpose. When entering a particular field, the Legislature invariably incorporates its value judgments into the definitions and categories of the statutory scheme. The performance of this task necessarily involves the drawing of arbitrary lines. Therefore when the Legislature decides to regulate the production of one commodity and not another it has made a choice which is arbitrary. That alone will not render the legislation defective since there may be arbitrary distinctions as part of a rational pattern. A general illustration of this concept is that in many countries vehicles must travel on the right side of the road. Although arbitrary this is nevertheless compelling and therefore rational in that one side or the other be chosen. Thus, while arbitrariness in the sense of selection within a group of choices is inevitable, a modicum of rationality is required for a statute to be valid (McGowan v Maryland, 366 US 420, 425-426).

Of course, one must be wary that assertions of irrationality are not simply reflections in the eye of the beholder. To provide a day of rest it is necessary in modern society both to permit and to prohibit. In the selection of what should be permitted, accommodation is made to serve modern relaxed ideas of what is desirable or even necessary to a uniform day of rest. No two persons or groups by reason of diverse tastes (or needs) are likely to agree on the commercial activity which 285*285 should be permitted, or prohibited. Respect for legislative wisdom and prerogatives as well as a proper sense of judicial power compels deference to enactments which are rationally related to the intended purpose. Consequently unconstitutionality on the grounds of irrationality is the weakest ground for striking down a statute and is seldom used. Yet where a statute encompasses a haphazard and anachronistic amalgamation of exceptions lacking discernible connection to the law's purpose, it cannot be judicially condoned. There is no question but that the Legislature could find that the sale of certain commodities or the rendering of certain services on Sunday are both necessary and desirable. Indeed the world cannot cease to function on Sunday and so exceptions must be found which reasonably relate to the health of the citizenry as well as the enhancement of their rest and relaxation. Even if these exceptions result in what appears to be a form of statutory discrimination that is arbitrary, the statute should not be judicially disturbed if found to be justified and related to the legislative objective (McGowan v Maryland, supra; see Kotch v Pilot Comrs., 330 US 552). However, legislative leeway should never be permitted to extend to the promulgating of statutes which are utterly lacking in cohesive scheme. When the classifications are not only arbitrary but also irrational they transgress the broad prerogatives of the Legislature.

The challenged section (General Business Law, § 9) contains a polyglot of exceptions to the general closing mandate which is essentially devoid of rhyme or reason. And although we are tempted to illustrate its absurdities by portraying the bountiful colors of this crazyquilt, they are well documented and reiteration would serve no useful purpose (see, e.g., People v Acme Markets, 37 N.Y.2d 326, 332 [concurring opn WACHTLER, J.]; Playtogs Factory Outlet v County of Orange, 51 AD2d 772 [concurring opn SHAPIRO, J.]). Suffice it to say that although mathematical symmetry is not required, the helter-skelter collection of exceptions found in this section ranging from thoroughbreds to soda water, renders it unenforceable and consequently popularly flouted. A concomitant effect of this unenforceability is an erosive disrespect for the law which should not be tolerated in the name of legislative latitude. Moreover, the irrationality of section 9 is confirmed by the conspicuous evidence of prosecutorial indifference, of popular 286*286 disdain for the prohibitions of the statute and of community inappetence for its enforcement.

In our view the only solution is to declare unconstitutional section 9 of the General Business Law as it is presently drafted. To declare just the offending exceptions void would be unwise since the general closing mandate would still remain. Equally unwise would be for the court to engage in the legislative function of selecting those exceptions which are rationally related to the statute's purpose.

The most appropriate course is to invalidate the entire section^[5] and present the Legislature with a clean slate. Should the Legislature continue to deem a Sunday closing law desirable it may readily devise a system of exemptions which could produce an atmosphere appropriate for a common day of rest and one which is consonant with today's needs and mores. Hopefully new legislation could provide sufficient leeway to allow the social dynamics of supply and demand as well as the stabilizing effects of custom and tradition to gravitate toward a scheme which is acceptable to the people and enforceable.

Finally, we have also considered the validity of the forfeiture provision of the Blue Laws (General Business Law, § 12) and have determined that it is unconstitutionally vague. Again an historical perspective is instructive. The first Sabbath Laws enacted by New York State provided for a fine of six shillings for each offense and a forfeiture of any goods to be sold in satisfaction of the penalty. The proceeds were to be turned over to the "overseers of the poor" for the use of the poor. In the event that the offender had no goods or the proceeds of a forfeiture sale were shy the offender was to "be set publickly in the stocks" for two hours (Laws of New York, 1785-1788, ch 42). Subsequent enactments modified the sanctions by providing for an outright forfeiture of goods exposed for sale and by ameliorating the alternate penalty by imposing a stint in "the common gaol" for no more than 12 hours (L 287*287 1813, ch 24). The precursor to our present statute made Sabbath breaking punishable by a fine of up to $10 and if the public selling section was violated a forfeiture of all the goods exposed for sale with the proceeds paid to the "overseers of the poor" (Penal Code of 1881, §§ 269, 270). These penalties were continued unchanged in the Penal Law of 1909 (§§ 2149, 2152) but modified somewhat in the present statute. Nevertheless those parties violating the public traffic provision of the Sabbath Laws are not only fined from $5 to $10 (General Business Law, § 4) but forfeit all the property exposed for sale with the proceeds paid to the "overseers of the poor" (§ 12). As noted by the trial court this forfeiture section is rife with ambiguities. We know of no municipality which has "overseers of the poor". Moreover the statute fails to specify who the recipients would be or how they would be selected. This provision is a classic example of an eighteenth century statute which has never been modernized and is unable to function in a twentieth century world. This obsolete provision, in dire need of renovation, should be declared unconstitutionally vague.

Accordingly, the order appealed from should be reversed and sections 9 and 12 of the General Business Law declared unconstitutional and void.

Appendix

§ 9. Public traffic on Sunday.

All manner of public selling or offering for sale of any property upon Sunday is prohibited, except as follows: 1. Articles of food may be sold, served, supplied and delivered at any time before ten o'clock in the morning:

2. Meals may be sold to be eaten on the premises where sold at any time of the day;

3. Caterers may serve meals to their patrons at any time of the day;

4. Prepared tobacco, bread, milk, eggs, ice, soda-water, fruit, flowers, confectinery, souvenirs, items of art and antiques, newspapers, magazines, gasoline, oil, tires, cemetery monuments, drugs, medicine and surgical instruments may be sold and delivered at any time of the day.

5. Grocers, delicatessen dealers and bakeries may sell, supply, serve and deliver cooked and prepared foods, between the hours of four o'clock in the afternoon and half-past seven o'clock in the evening, in addition to the time provided for in subdivision one hereof, and, elsewhere than in cities and villages having a population of forty thousand or more, delicatessen dealers, bakeries and farmers' markets or roadside stands selling fresh vegetables and other farm produce, and fishing tackle and bait stores may sell, supply, serve and deliver merchandise usually sold by them, at any time of the day.

288*2886. Persons, firms or corporations holding licenses and/or permits issued under the provisions of the alcoholic beverage control law permitting the sale of beer at retail, may sell such beverages at retail on Sunday before three antemeridian and after twelve noon for off-premises consumption to persons making purchases at the licensed premises to be taken by them from the licensed premises.

7. Sale at public auction of thoroughbred, standardbred and quarter horse racehorses.

The provisions of this section, however, shall not be construed to allow or permit the public sale or exposing for sale or delivery of uncooked flesh foods or meats, fresh or salt, at any hour of the time of the day. Delicatessen dealers shall not be considered as caterers within subdivision three hereof.

§ 12. Forfeiture of commodities exposed for sale on Sunday.

In addition to the penalty imposed by section four, all property and commodities exposed for sale on the first day of the week in violation of the provisions of this article shall be forfeited. Upon conviction of the offender by a justice of the peace of a county, or by any police justice or magistrate, such officer shall issue a warrant for the seizure, of the forfeited articles, which, when seized, shall be sold on one day's notice, and the proceeds paid to the overseers of the poor, for the use of the poor of the town or city.

FUCHSBERG, J. (concurring).

Defendant, an employee of the Poughkeepsie Plaza Pharmacy, was charged with selling a ceramic coin bank for $1.03 on Sunday in violation of the provisions of section 9 of the General Business Law. He challenges his conviction on the grounds that this "Sabbath Law" (General Business Law, § 2) is violative of equal protection principles contained in both the State and Federal Constitutions (NY Const, art I, § 11; US Const, 14th Amdt) and, as presently written, is void for vagueness.^[1]

Less than a year ago, we were asked to decide this same equal protection question. While three of us were prepared to reach the constitutional question at that time, two other members of the court believed it sufficient, in the context of that case, to reverse the conviction on the ground that it had resulted from discriminatory enforcement (People v Acme Markets, 37 N.Y.2d 326). Now, however, we are squarely presented with the constitutionality of the statute itself. Because my colleagues, who, like myself, find section 9 unconstitutional today, would leave intact other portions of article 2 289*289 which I believe are inextricably intertwined with section 9, I have set forth my views separately.

I begin by noting, as pointed out in the Acme Markets case, that "[t]he entire court is in agreement that the statute in question does not transgress the prohibition against establishment of religion" (37 NY2d, at p 333 [concurring opn of Judge WACHTLER]). The focus here, instead, as in Acme, is on the question of whether the distinctions drawn by the statute between activities which may be conducted on Sunday and those which may not are rational ones, for, if they are not, they are violative of equal protection principles.

Nevertheless, it is helpful to this analysis to recognize that we are dealing with a statute which, while it has presently the secular purpose to regulate the health and welfare of citizens under the police power of the State, is indisputably derived from older enactments designed to further the religious nature of the Sabbath (see People v Acme Markets, supra, at p 332; People v L. A. Witherill, Inc., 29 N.Y.2d 446, 449; People v Friedman, 302 N.Y. 75, 79-80; People v Dunford, 207 N.Y. 17; People v Havnor, 149 N.Y. 195; People v Moses, 140 N.Y. 214; Merritt v Earle, 29 N.Y. 115; McGowan v Maryland, 366 US 420, 431-451).

As the United States Supreme Court explained in McGowan v Maryland (supra), the substitution of a permissible concern for the general welfare for the earlier concern that the religious nature of the day be fully observed came about gradually as a result of a process of modification and accretion (366 US, at p 434). That court found the history of these changes to be strong evidence that Sabbath Laws throughout the country presently have a secular and not a religious purpose (at p 444; see, also, People v Acme Markets, supra, at p 333). So, in New York, for example, the use of such terms as "desecration" of the "Christian Sabbath" to describe breaches of the Sabbath peace caused by fishing on a private pond (People v Moses, 140 N.Y. 214, 215, supra) have dropped from sight, replaced by legislative concern with the recreational merits of exceptions such as ones pertaining to the sale of fishing tackle and beer, art and antiques, or, most recently, thoroughbred horses at auction (L 1975, ch 759, § 1).

While that history demonstrates that no impermissible taint of establishment of religion clings to the statute, it also proves that the statute is not the product of a single, conceptually cohesive legislative plan, but, instead, the consequence of 290*290 years of patching and filling by the Legislature as it attempted to keep up with rapidly changing societal patterns and needs. Under such circumstances, it was almost inevitable that a time would come when the patchwork no longer made any sense. I share my brother Judges' view that that moment has arrived. For the statute in its present form creates distinctions which can only be described as irrational, precisely the conclusion reached by those of us who joined in the concurring opinion in Acme Markets (37 NY2d, at pp 333-334). I find it desirable, however, to set forth here, somewhat more fully than was appropriate in the context of the Acme Markets decision, the legal basis upon which I believe it must be found that the statute violates equal protection principles.

Of course, unless classifications created by statute impinge upon some fundamental right or rest upon suspect criteria (Alevy v Downstate Med. Center of State of N. Y., 39 N.Y.2d 326, 332-333; Matter of Malpica-Orsini, 36 N.Y.2d 568) they must be upheld if they rest upon a rational basis. Distinctions among items which may be sold on Sunday and items which may not, though made in pursuit of the public health and welfare rather than on purely economic grounds, thus appear to be subject to this less stringent test of rationality.

But rationality in this context is not easy to define. As the United States Supreme Court noted in McGowan, "[t]he problem of legislative classification is a perennial one, admitting of no doctrinaire definition" (366 US, at p 426, n 3, citing Tigner v Texas, 310 US 141). More helpfully, the court there stated that: "Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." (McGowan v Maryland, supra, at pp 425-426 [emphasis added].)

The test is thus not whether a court, by an unfettered exercise of its imagination, can dream up circumstances which might justify the classifications, but, rather, whether the 291*291 Legislature's own goals are reasonably furthered by the classes it created.

As the court also pointed out in McGowan, the fact that a statutory classification system has been developed in a piecemeal fashion is not itself fatal to its rationality (at p 426). Nevertheless, the development of classifications by gradual accretion and not by comprehensive planning, particularly when accompanied by shifts in basic legislative purpose, opens up possibilities for the introduction of irrational distinctions in ways less likely to occur when a statute is designed in toto at one time. Courts may find in such circumstances confirmation of their judgments that things have gone beyond the bounds of reasonableness.

So it is with section 9 of the General Business Law. The statute, which began as a general prohibition upon sales of goods of all kinds (see former Penal Code, § 267), presently makes it possible, for instance, to buy beer, but not cooked meals, for home consumption (§ 9, subds 2, 6); to eat meals in a restaurant but not to drink therein; to purchase a thoroughbred horse at public auction but not to buy a less distinguished animal (§ 9, subd 7); to buy books at a newsstand but not in a bookstore (People v Corpora, 15 N.Y.2d 702); to buy skis but not ski wax, gasoline but not a battery, and, as in the case before us, to purchase drugs and medicines in a drugstore but not to purchase most of the many other products sold in that same store, often on the very same counter (People v Genovese, 24 N.Y.2d 917; People v Utica Daw's Drug Co., 16 AD2d 12).

It is impossible to conceive of any reasonable state of facts which could explain how the avowed legislative purpose to provide a day of rest and recreation for all citizens (General Business Law, § 2; People v Dunford, 207 N.Y. 17, supra; People v Friedman, 302 N.Y. 75, supra) is furthered by such distinctions.^[2] It is difficult to see how such classifications are related 292*292 to the promotion of rest or recreation or even of "religious liberty" (General Business Law, § 2). It is apparent that they are, rather, a hodgepodge of unrelated exceptions legislated at the instance of whichever interest groups were best able to bring their views to the Legislature's attention (see, for example, the concurring opn of Mr. Justice FRANKFURTER in McGowan v Maryland, supra, at p 535; Pfeffer, Church, State, and Freedom, pp 233-234). That such lobbying was their privilege as citizens does not serve to provide the resulting patchwork with a functional relationship to the stated legislative purpose. Instead, it reinforces our conclusion that the complexity of modern society's increasingly varied pursuits of rest and recreation has utterly outstripped the original statute, forcing the Legislature to accommodate these developments haphazardly as particularly pressing needs were called to its attention. In short, the present statute no longer "responds to the practical living facts with which it deals" (McGowan v Maryland, supra, at p 524).

Moreover, although this particular defendant's conviction was based on section 9 of the Sabbath Laws, which is concerned with the sale of goods, I believe that our attention ought not to be confined to that section of the law alone, for "in order properly to consider * * * the broad constitutional contentions, we must examine the whole body of * * * [New York's] Sunday laws" (336 US, at p 423). Inasmuch as other parts of those laws are integrally related to section 9, our holding today inevitably has consequences which will permeate interpretations of those other parts as well.

Not all of the sections of the statutes are so intertwined. Some of them, such as those which regulate sports events, parades, service of process or entertainment presentations,^[3]293*293 are sufficiently unrelated to the commercial interests involved in selling goods so that, at least for the purpose of deciding the case before us, whatever internal inconsistencies there may be in these sections should be left for examination at another time. But three of the sections subsumed under the rubric of Sabbath Laws are unavoidably interrelated. These are section 9, which has already been discussed, and sections 5 and 8, which, respectively, prohibit all "labor" on Sunday except that which is "needful during the day for the good order, health or comfort of the community" and all "trades, manufactures, agricultural or mechanical employments" except those which are "works of necessity" which can be performed without disturbing the repose of the community.^[4]

The interrelationship does not stem from the history of the three sections. Indeed, although, as the majority points out, the seeds of all three sections can be found in a single early enactment (Laws of New York, 1785-1788, ch 42) their subsequent separation and development has proceeded by modification and evolution and without any noticeable effort on the part of the Legislature to co-ordinate them (Pfeffer, Church, State, and Freedom, pp 227-237). Their present interrelationship derives instead from the fact that the society which they attempt to regulate has changed so drastically since each section was first conceived that the traditional lines of demarcation that at one time may have separated "labor", "trades", and "sales" have, for all practical purposes, vanished beyond 294*294 recall. (See Changes in the Occupational Structure of US Jobs, Monthly Labor Review [US Bureau of Labor Statistics], March, 1975, pp 24-34; Employment Outlook for Tomorrow's Job, Bureau of Labor Statistics: Occupational Outlook Handbook [1974-1975 ed]; Occupational Outlook for the Mid-Eighties, Occupational Outlook Quarterly, vol 18, No. 4 [Winter, 1974].)

Case law developed under sections 5 and 8 thus exhibits the same sort of schizophrenia that the statutory exceptions listed in section 9 display. Indeed, since the former two sections contain no express list of exceptions, but only permission to do what is "necessary", the list of exceptions has simply developed by way of case law instead of by legislative fiat. However justified each exception may have appeared to be at the time each was made, viewed collectively from our present perspective, they suffer from the same kind of irrationality which characterizes section 9.

Cases which have tried to wrestle with the status of the modern automatic, coin-operated laundry under the Sabbath Laws tell the story well. Reading them, we learn that the operation of such a laundry is not a prohibited sale under section 9 (People v Gwyer, 7 AD2d 711), but is the practice of a trade not "necessary" on Sunday (People v Kaplan, 8 AD2d 163). Further, this is so even when the proprietor of such an establishment does not work on Sunday, but merely leaves the front doors open from Saturday night to Monday morning.

In contrast, while attendants required to be present by law in New York City in automatic laundromats after 6:00 P.M. are performing "labor" in violation of section 5, the operation of the laundromat without them would be permitted under that section so long as the proprietor does not do any work on the premises himself (Schacht v City of New York, 40 Misc 2d 303, affd 27 AD2d 987). As the dissenting opinion in the Kaplan case pointed out, it is "an obvious fact [that] no Legislature has ever considered the problem [of automated laundries] in the context of the Sunday laws" (8 AD2d, at p 168 [dissenting opn of then Justice now Chief Judge BREITEL]). (See, also, People v Rubenstein, 17 Misc 2d 10; People v Aliprantis, 8 AD2d 276; People v Welt, 14 Misc 2d 275; People v Andob Corp., 25 Misc 2d 542; Jiffy Auto Laundry v Monaghan, 118 NYS2d 189 [all cases involving automatic laundries brought under various sections of the statute].)

Confusions among the definitions of selling, of trade, and of 295*295 labor have abounded as have inconsistent definitions of each of those terms themselves. So "labor" has been defined as not being limited to menial work (People v Polar Vent of Amer., 10 Misc 2d 378, affd 4 N.Y.2d 954). In the Polar Vent case, employees who did no other work than display wares and solicit sales from customers on Sunday in a showroom were held to be in violation of section 5, and the same holding was applied to sales in a showroom of homes which could be built upon the customer's land (People v Federal Bldrs. & Home Modernization Corp., 65 Misc 2d 407); on the other hand, a real estate salesman who did the same thing has been held exempt from prosecution because the sale of real estate was not intended to be covered by the prohibition upon sale of goods in the predecessor to section 9 (People v Dunford, 207 N.Y. 17, supra), and no suggestion has ever been made, to our knowledge, that such sales of realty might violate the labor section of the statute. Thus one may purchase a house on Sunday if it is already attached to land, but otherwise not. A senior accountant supervising a team of auditors has been held innocent of violating section 5 (People v Sacks, 2 Misc 2d 201) because his work was entirely mental; on the other hand, the supervisor of men working in a factory was convicted even though he proved that he did no physical labor but only mental work (People v Adler, 174 App Div 301). The operation of a travel bureau is not violative of section 5 (Matter of Haroche v Leary, 64 Misc 2d 191); again on the other hand, it is the "'business one practices or the work in which one engages regularly'" which was the rationale on which the operation of the automatic laundry by an absent proprietor was held violative of section 8 in People v Kaplan (8 AD2d 163, 164, supra).

Manifestly, then, the persistent pattern of inconsistencies infiltrates all three sections and creates a crazyquilt of irrationalities that cross over from each section to the others as well. Thus, it is not at all clear that section 9, at least insofar as it creates specific exceptions for certain kinds of sales of goods, has not constituted a barrier to prosecutions under sections 5 or 8 for the same sales, certainly to the extent that those activities also involve labor or trade, a blending almost impossible to avoid as "blue collar" and "white collar" distinctions blur into the all-enveloping and amorphous category of service worker. Since courts' ability to enforce the latter sections has proved to be no more consistent or rational than 296*296 was the Legislature's ability to amend section 9 rationally, the invalidation of section 9 would leave the hopeless task of deciding which of the sales formerly authorized by that section are forbidden under the rubrics of labor or trade.

If section 9 alone were invalidated, would the sale by the roadside of the fruits of the farm then be "agricultural employment" under section 8? Would the sale of such a confection as the soft ice cream poured into cones as it comes out of the front of a machine be "manufacture" within section 8 when an employee standing in back of it puts the raw ingredients into the other end? Is ice cream "necessary" to our rest and recreation? Are beer, magazines, thoroughbred horses, souvenirs, cemetery monuments, and fishing tackle — now all permitted sales exceptions under section 9 — then to be considered "necessary" on Sunday? Perhaps the closest any court in this State has come to a definition of what is "necessary" for the good order of society on Sunday is the statement made over a century ago that necessity must be determined on a case-by-case basis (Landers v Staten Is. R. R. Co., 13 Abb Prac [NS] 338). The ability to make the distinctions among activities required by the word "necessity" does not seem to have improved with the passage of time. The escalating changes in society certainly have not helped.

In sum, the omnipresence of commercial activities which cannot be isolated neatly within the strict confines of any one of sections 5, 8, or 9 is such that, realistically viewed, the three sections do not lend themselves to practical severance from one another. Experience with them demonstrates that the three are so interwoven that, if sections 5 and 8 were left standing alone, they would continue to spawn and proliferate the very kind of problems which are now produced by the three sections together. (See McKinney's Cons Laws of NY, Book 1, Statutes, § 150, p 328.) Therefore, I would hold not only that section 9 (and of course § 12) is unconstitutional but that sections 5 and 8 should fall with it, for, unless we declare all three invalid, the net result of our decision will be illusory, accomplishing in the main no more than the substitution of section 5 or section 8 for section 9 in summons or appearance tickets which initiate most criminal prosecutions under article 2 of the General Business Law.

Accordingly, on that broader basis, I would reverse the order of the Appellate Term and dismiss the information.

Order reversed and the information dismissed.

[1] For the text of sections 9 and 12 of the General Business Law, see Appendix attached.

[2] In view of the apparently random and hence nondiscriminatory manner of enforcement here, the appellant does not assert unconstitutional discriminatory enforcement as a basis for reversal. (But cf. People v Acme Markets, 37 N.Y.2d 326).

[3] The statute read in pertinent part as follows:

"§ 263. All manner of servile labor, on the first day of the week, is prohibited, excepting in works of necessity or charity.

* * *

"§ 265. All shooting, hunting, fishing, playing, horse racing, gaming or other public sports, exercises, pastimes or shows, upon the first day of the week, and all noise disturbing the peace of the day, are prohibited.

"§ 266. All trades, manufactures and mechanical employments upon the first day of the week are prohibited.

"§ 267. All manner of public selling, or offering or exposing for sale publicly, of any commodities upon the first day of the week is prohibited, except that meats, milk and fish may be sold at any time before nine o'clock in the morning, and except that food may be sold to be eaten upon the premises where sold, and drugs, medicines and surgical applicances [sic] may be sold at any time of the day."

In 1883 the word servile was deleted from section 263 (L 1883, ch 358, § 1).

[4] No doubt the spasmodic promulgation of exceptions enacted over nearly a century represents diverse and occasionally contradictory legislative response to societal input. Nevertheless it is beyond the province of the judiciary to hypothesize about the motives of legislators and whether or not portions of a statute are attributable to the efforts of so-called special interests (Soon Hing v Crowley, 113 US 703). The task of a reviewing court is to evaluate the assailed statutes in light of settled principles, not subjective predilections.

[5] We are not unmindful that a consequence of eliminating the general closing mandate will be the opening of numerous business establishments on Sundays which will require the performance of various services that could be classified as labor. Our decision today in no way infringes on the prohibition against labor (General Business Law, § 5); however, we would note that this section contains an exception for labor which is necessary for the "good order, health or comfort of the community" (§ 5). Moreover, we believe that our holding need not work a hardship on those who are required to work on Sundays in light of the protections afforded by the Labor Law (e.g., Labor Law, § 161) and the potential for either statutory or contractual adjustments in the rate of compensation.

[1] Because I would reverse here on equal protection grounds, I do not reach defendant's assertion of vagueness save to note that we have, albeit in somewhat equivocal terms, rejected a similar challenge to section 9 based on vagueness in the recent past (People v Weston's Shoppers City, 30 N.Y.2d 572). I do, however, concur in today's holding that the forfeitures provided for in section 12 are fatally ambiguous and the section must therefore be declared invalid.

[2] Cases in the many courts in other States, which, having been confronted with statutes containing similar accretions of prohibitions and exceptions, have reached this same conclusion include Denver v Bach (26 Col 530), Allen v Colorado Springs (101 Col 498), Elliot v State (29 Ariz 389), City of Mt. Vernon v Julian (369 Ill 447), Gronlund v Salt Lake City (113 Utah 284), City of Springfield v Smith (322 Mo 1129), Bocci & Sons Co. v Lawndale (108 Cal 720), Matter of Ferguson (62 Okla Crim 145), Deese v City of Lodi (21 Cal App 2d 631), Henderson v Antonacci (62 So 2d 5 [Fla]), Kelly v Blackburn (95 So 2d 260 [Fla]), Auto-Rite Supply Co. v Mayor (41 NJ Super 303, affd on other grounds 25 NJ 188), Chan Sing v City of Astoria (79 Ore 411) and Broadbent v Gibson (105 Utah 53).

[3] Section 7 of the General Business Law prohibits "All public sports, exercises or shows, except professional golf tournaments * * * and all noise unreasonably disturbing the peace of the day" conducted for "the entertainment of spectators" on Sundays, unless a local government exercises its option to permit such activities after 1:05 P.M. It permits all sports, games or recreational activities engaged in for personal enjoyment so long as these do not "constitute a serious interruption of the repose or religious liberty of the community."

Section 11 of that law forbids service of process on Sunday except in criminal proceedings or where otherwise authorized by statute. Section 13 provides penalties for malicious service of process on Saturdays on those who observe that day as their Sabbath.

Section 14 forbids "All processions and parades on Sunday in any city" save funeral or religious processions, and forbids all noise or music connected with the latter except that military salutes or military music is permitted at any time of day at the funeral of a serviceman or member of a secret fraternal society and after 1:00 P.M. at a religious ceremony. The general prohibition may be relaxed by local law after 2:00 P.M.

Section 15 prohibits "All legitimate theatrical performances, concert and recital dances, motion picture exhibitions, or other public exhibitions, exhibits, shows or entertainment" except where local law permits these after 1:05 P.M. It also provides that if such performances were the custom in a locality prior to the passage of section 15, they are permitted to continue unless subsequently prohibited by local law.

[4] Section 5 of the General Business Law reads: "All labor on Sunday is prohibited, excepting the works of necessity and charity. In works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community."

Section 8 of the General Business Law reads: "All trades, manufacturers [sic], agricultural or mechanical employments upon the first day of the week are prohibited, except that when the same are works of necessity they may be performed on that day in their usual and orderly manner, so as not to interfere with the repose and religious liberty of the community."

The use of the word "manufacturers" instead of "manufactures" appears to have been inadvertent (McKinney's Cons Laws of NY, Book 19, General Business Law, § 8, n 1).

Emanuel Redfield for appellant.

Louis J. Lefkowitz, Attorney-General (Joel Lewittes and Samuel A. Hirshowitz of counsel), intervenor-respondent, in his statutory capacity under section 71 of the Executive Law.

No appearance for respondent.

Chief Judge FULD and Judges BERGAN, KEATING and BREITEL concur with Judge BURKE; Judge SCILEPPI dissents and votes to affirm in a memorandum in which Judge VAN VOORHIS concurs.

311*311BURKE, J.

On three occasions in late 1964, each about a month apart, the plaintiff, Charles Fenster, was arrested by the New York City police and charged with violation of subdivision 1 of section 887 of the Code of Criminal Procedure (New York's vagrancy statute). Fenster was charged under the language of this section with being "a person who, not having visible means to maintain himself, lives without employment". Following each arrest he was acquitted of the violation charged, but conviction on such charges would have subjected him to possible imprisonment for up to six months. (Code Crim. Pro., § 892.)

The record does not indicate why this plaintiff was singled out for such treatment by the police, especially in the face of previous acquittals, but Fenster, apparently concerned at the likelihood of further arrests on this same charge, sought, following his third arrest, an order in the nature of prohibition against the Criminal Court of the City of New York barring that court from hearing and determining the charge of vagrancy levelled against him following his third arrest. In this action he attacked the constitutionality of the statute, but prohibition was denied in our lower courts, and in this court the decisions below were affirmed on the sole ground that the remedy of prohibition was discretionary (Matter of Fenster v. Criminal Ct. of City of N. Y., 17 N Y 2d 641).

312*312After our decision in this earlier action and following his third acquittal on this vagrancy charge, plaintiff applied to a three-Judge Federal court in the Southern District of New York for a declaration of the statute's unconstitutionality. This was denied on the ground that plaintiff had a State remedy by way of an application to the New York courts for a declaratory judgment (264 F.Supp. 153), and the United States Supreme Court affirmed (see 386 U. S. 10).

Plaintiff next initiated the present action seeking declaratory relief in the Supreme Court, New York County (LUPIANO, J.). He is again before this court on a direct appeal from the judgment of the Supreme Court, at Special Term, denying his motion for summary judgment declaring subdivision 1 of section 887 unconstitutional and dismissing his complaint. He urges that we at last strike down this law.

Plaintiff's appeal is appealable directly to this court as the sole question raised and decided below and the sole issue on this appeal is the constitutionality of subdivision 1 of our vagrancy statute (see CPLR 5601, subd. [b], par. 2) and declaratory relief of the kind here sought is available in our courts under the circumstances here presented (see Bookcase, Inc. v. Broderick, 18 N Y 2d 71).

Plaintiff's arguments against the constitutionality of this statute are as follows: (1) It interferes with and impairs the liberty of a citizen to exercise his faculties so long as he does not interfere with others; (2) it requires involuntary servitude in violation of the Thirteenth Amendment; (3) it denies plaintiff the equal protection of the laws; (4) it imposes cruel and unusual punishment on a person because of his status; and (5) it deprives plaintiff of his privileges and immunities guaranteed by the Federal Constitution.

We are in agreement with plaintiff that subdivision 1 of section 887 of the Code of Criminal Procedure is unconstitutional, on the ground that it violates due process and constitutes an overreaching of the proper limitations of the police power in that it unreasonably makes criminal and provides punishment for conduct (if we can call idleness conduct) of an individual which in no way impinges on the rights or interests of others and which has in no way been demonstrated to have anything more than the most tenuous connection with prevention of crime 313*313 and preservation of the public order (on which ground the Attorney-General would have us sustain the statute), other than, perhaps, as a means of harassing, punishing or apprehending suspected criminals in an unconstitutional fashion. We do not reach any of the other arguments for invalidity urged by plaintiff.

The crime of common-law vagrancy, which is what subdivision 1 of our statute involves, contains three elements: (1) being without visible means of support, (2) being without employment, and (3) being able to work but refusing to do so. (See Note, The Vagrancy Concept Reconsidered, 37 N. Y. U. L. Rev. 102, 109.) In a more homely fashion our statute has been described as directed against the "loafer or lazy man, the one who hangs about streets and public places without employment or visible means of support when he could with effort obtain something to do." (People v. Sohn, 269 N.Y. 330, 334-335.) Such statutes have their origins in feudal laws aimed against runaway serfs and the English "poor laws" (see Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L. J. 1; Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv. L. Rev. 1203; Note, The Vagrancy Concept Reconsidered, 37 N. Y. U. L. Rev. 102) and were originally designed as a means of regulating the economic life of the populace. The modern emphasis or stated justification for retaining such laws has shifted, however, to the prevention or control of crime and common-law vagrancy remains a crime in virtually all American jurisdictions. (See, e.g., Lacey, op. cit., supra; Note, The Vagrancy Concept Reconsidered, supra.)

As a number of commentators have observed, common-law vagrancy, in contrast to most other crimes recognized in our law, is not defined in terms of an act or acts but in terms of a status or condition of being (see, e.g., Lacey, op. cit., supra, p. 1203). The essential element of this crime, as well as of other status crimes, is "the accused's having a certain personal condition or being a person of a specified character." (Ibid.) Other crimes of status would include "gangster statutes" (such as was involved in Lanzetta v. New Jersey, 306 U. S. 451) or statutes making it criminal to be a narcotics addict (such as was involved in Robinson v. California, 370 U. S. 660). Under our own section 887 a number of other "personal 314*314 conditions" are declared to make one a vagrant and thus subject to imprisonment, e.g., that of being a prostitute or panderer (§ 887, subd. 4) or of being a beggar on the public ways (§ 887, subd. 5). Such statutes cannot stand if they would make criminal a condition, such as one resulting from illness, over which the accused has no control (Robinson v. California, supra; see, also, People v. Sohn, supra) or if the class of persons coming within their ambit is so vaguely defined as to make it unclear to potential violators just what conduct will subject them to criminal liability and what will not (Lanzetta v. New Jersey, supra). Such constitutional problems would not appear to be directly involved in the instant case, however, as under our Sohn decision (supra) it seems clear that physical or even psychological inability to work would bar conviction as a vagrant and plaintiff does not appear to attack the statute as void for vagueness (for which reason we need not reach this point). Another constitutional problem, of major proportions, does, however, appear in this case, namely, whether our statute constitutes a valid exercise of the police power.

Initially, it must be observed that a strong presumption of validity attaches to statutes and that the burden of proving invalidity is upon those who challenge their constitutionality to establish this beyond a reasonable doubt (see Matter of Van Berkel v. Power, 16 N Y 2d 37, 40, and the cases cited therein), but it must likewise be noted that a statute whose effect is to curtail the liberty of individuals to live their lives as they would and whose justification is claimed to lie in the exercise of the police power of the State must bear a reasonable relationship to, some proportion to, the alleged public good on account of which this restriction on individual liberty would be justified. As Judge FULD (as he was then) observed in People v. Bunis (9 N Y 2d 1, 4), "The police power is `very broad and comprehensive' and in its exercise `the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other', * * * But, in order for an exercise of the police power to be valid, there must be `some fair, just and reasonable connection' between it and the promotion of the health, comfort, safety and welfare of society".

315*315The Attorney-General of New York, appearing herein pursuant to section 71 of the Executive Law in defense of the statute's constitutionality, cites to us various statements from our own decisions and from the decisions of our lower courts in support of vagrancy statutes as a valid exercise of the police power. The general thrust of these decisions is that in order to prevent there coming into existence a "class of able-bodied vagrants * * * [supporting] themselves by preying on society and thus [threatening] the public peace and security" (People ex rel. Stolofsky v. Superintendent, 259 N.Y. 115, 118), to "compel individuals to engage in some legitimate and gainful occupation from which they might maintain themselves, and thus remove the temptation to lead a life of crime or become public charges" (People v. Banwer, 22 N. Y. S. 2d 566, 569 [Magistrate's Ct., Brooklyn, 1940]), the able-bodied poor may be made, subject to the sanctions of the criminal law, to accept available employment. This view of the matter does, of course, raise the possibility of interesting Thirteenth Amendment problems, and plaintiff strenuously urges these as grounds for reversal, and it also raises an interesting "equal protection" question as to whether persons of means are entitled any more than the poor to enjoy the allegedly debilitating effects of idleness, but, on a more fundamental level, we feel the statute is defective on the ground that, whatever purpose and role it may or may not have served in an earlier day, and however valid or invalid may be the proposition that the ablebodied unemployed poor are a likely source of crime, in this era of widespread efforts to motivate and educate the poor toward economic betterment of themselves, of the "War on Poverty" and all its varied programs, it is obvious to all that the vagrancy laws have been abandoned by our governmental authorities as a means of "persuading" unemployed poor persons to seek work (the Attorney-General does not even suggest that the vagrancy laws would be invoked against such people today). It is also obvious that today the only persons arrested and prosecuted as common-law vagrants are alcoholic derelicts and other unfortunates, whose only crime, if any, is against themselves, and whose main offense usually consists in their leaving the environs of skid row and disturbing by their presence the sensibilities of residents of nicer 316*316 parts of the community, or suspected criminals, with respect to whom the authorities do not have enough evidence to make a proper arrest or secure a conviction on the crime suspected. (See Foote, Vagrancy-type Law and its Administration, 104 U. of Pa. L. Rev. 603; Lacey, op. cit., supra, pp. 1217-1219; see, also, People v. Robinson, 13 N Y 2d 296.) As to the former, it seems clear that they are more properly objects of the welfare laws and public health programs than of the criminal law and, as to the latter, it should by now be clear to our governmental authorities that the vagrancy laws were never intended to be and may not be used as an administrative short cut to avoid the requirements of constitutional due process in the administration of criminal justice. If it is only to allow arrests and criminal prosecutions for vagrancy to continue against individuals such as these that the Attorney-General would have us uphold the statute, then it must fall. And despite certain fairly recent cases upholding similar statutes (see Hicks v. District of Columbia, 197 A. 2d 154 [D. C. Ct. App., 1964], cert. dsmd. as "improvidently granted" 383 U. S. 252 [1966]; Dominguez v. City & County of Denver, 147 Col. 233), we can, in fact, see no other purpose in our statute today and, therefore, find it invalid.

The judgment below should be reversed, with costs against the intervenor-respondent, and judgment directed to be entered for plaintiff as demanded in the complaint.

SCILEPPI, J. (dissenting).

I disagree and would affirm. A strong presumption of validity attaches to a statute and the heavy burden of proving its invalidity rests upon the appellant who is attacking its constitutionality (e.g., New York State Thruway Auth. v. Ashley Motor Ct., 10 N Y 2d 151; Matter of Roosevelt Raceway v. Monaghan, 9 N Y 2d 293).

In my opinion, the appellant has not discharged his burden.

As Judge FULD (as he was then) said in People v. Bunis (9 N Y 2d 1, 4): "The police power is `very broad and comprehensive' and in its exercise `the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other' * * * But, in order for an exercise of the police power to be valid, there must be `some fair, just and reasonable connection' between it and the promotion of the health, comfort, safety 317*317 and welfare of society." There can be no doubt that the State has a legitimate interest in discouraging able-bodied men who are capable of working from becoming loafers and public charges (People v. Sohn, 269 N.Y. 330; Hicks v. District of Columbia, 197 A.2d 154 [D. C. Ct. App., 1964], cert. dsmd. 383 U. S. 252). The State has chosen to achieve that end by imposing criminal penalties on those who are vagrants. It is argued that this end might be better achieved through social welfare legislation rather than through criminal sanctions. This may be so, but the relative merit of one approach over another is for the Legislature to decide and not the courts. As long as the exercise of the State's police power bears a reasonable relationship to the ends sought to be accomplished, the constitutionality of the statute must be upheld. We cannot strike down the statute because we feel another approach would be better. In my opinion, the appellant has failed to prove that there is no reasonable relationship between the statute in question and the ends it seeks to accomplish. Accordingly, the statute must stand and the judgment below should be affirmed.

Judgment reversed, etc.

Michele Maxian and Caesar D. Cirigliano for appellants in the first above-entitled action.

Steven C. Krane for appellant in the second above-entitled action.

Jane K. Falcon and Philip L. Weinstein for appellant in the third above-entitled action.

Robert M. Morgenthau, District Attorney (Mark Dwyer and John G. Martin of counsel), for respondent in the first above-entitled action.

Robert M. Morgenthau, District Attorney (John G. Martin and Mark Dwyer of counsel), for respondent in the second above-entitled action.

John J. Santucci, District Attorney (Gary Seidel and Jeanette Lifschitz of counsel), for respondent in the third above-entitled action.

Chief Judge WACHTLER and Judges SIMONS, TITONE, HANCOCK, JR., and BELLACOSA concur in Per Curiam opinion; Judges KAYE and ALEXANDER taking no part.

306*306Per Curiam.

In People v Nelson et al., each of the defendants was charged with jostling (Penal Law § 165.25)^[*] in Criminal Court informations. Police officers allegedly observed each of them patting down victims' pockets, reaching to purposely touch handbags, putting their hands into other people's pockets or crowding victims or acting as lookouts while their companions took these actions. On defendants' motions, Criminal Court dismissed the informations, holding the jostling statute void for vagueness. The Appellate Term reversed, denied defendants' motions to dismiss and reinstated the informations.

Defendant Tyler was convicted of jostling after a jury trial. The evidence presented to the jury indicated that defendant had placed his hands inside two of the pockets of a man who was lying drunk and asleep on a subway platform. The Appellate Term affirmed the conviction, citing People v Nelson.

307*307An officer allegedly observed defendant Robinson patting down two pockets of a sleeping subway passenger, placing his hands inside the man's pants pocket and attempting to remove money. Criminal Court dismissed the misdemeanor complaint on the ground that the People were required to submit a corroborating affidavit by the victim. The Appellate Term reversed, reinstated the accusatory instrument and remanded the matter for further proceedings.

On appeal, defendants argue primarily that the jostling statute (Penal Law § 165.25) is void for vagueness. In People v Tyler and People v Robinson this issue is not preserved and, thus, our review of the issue is limited to People v Nelson et al.

A vagueness challenge involves a two-part analysis. First, it must be determined whether the statute in question is "sufficiently definite `to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute'" (People v Smith, 44 N.Y.2d 613, 618, quoting United States v Harriss, 347 US 612, 617). Citizens must be afforded fair warning of what is prohibited by law so that they may act accordingly (Grayned v City of Rockford, 408 US 104, 108-109). Second, a statute "`must provide explicit standards for those who apply them' so as to avoid `resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application'" (People v Smith, supra, at 618, quoting Grayned v City of Rockford, supra, at 108-109). The Constitution abhors a law placing unfettered discretion in the hands of police, prosecutors and juries and allowing punishment of the poor or unpopular on a whim (Kolender v Lawson, 461 US 352, 357-358; Papachristou v City of Jacksonville, 405 US 156). Defendants allege that Penal Law § 165.25 runs afoul of both of these concerns. We disagree.

Unlike statutes which have been declared void for vagueness because they provide insufficient warning to the person of ordinary intelligence (see, e.g., Papachristou v City of Jacksonville, supra), Penal Law § 165.25 clearly delineates specific conduct easily avoided by the innocent-minded. It should present no difficulty for a citizen to comprehend that he must refrain from acting with the intent to bring his hand into the proximity of a stranger's pocket or handbag unnecessarily. Moreover, contrary to defendants' claim, the statute is no more difficult to interpret and obey because it does not require larcenous intent. Penal Law § 165.25 prohibits a certain intentional 308*308 course of conduct regardless of the wrongdoer's underlying purpose or motive.

Defendants concern themselves with possible applications of the word "unnecessarily" which would be outside the statute's intended realm, such as tugging on another's handbag to gain that person's attention. It has often been said, however, that, except in rare circumstances not relevant here, a vagueness challenge must be addressed to the facts before the court (United States v Mazurie, 419 US 544, 550; United States v Raines, 362 US 17, 20-22; see, Broadrick v Oklahoma, 413 US 601, 610-611). Thus, if the actions of the defendants are plainly within the ambit of the statute, the court will not strain to imagine marginal situations in which the application of the statute is not so clear (Young v American Mini Theatres, 427 US 50, 58-59, reh denied 429 US 873; United States v Powell, 423 US 87, 93). Here, defendants do not, nor could they, argue that their own acts should be interpreted as necessary. Therefore, any element of vagueness in this statute has had no effect on these defendants and they have no standing to complain of it (Young v American Mini Theatres, supra, at 59). This court cannot consider the possibility that the statute may be vague as applied in other hypothetical situations.

Nor does Penal Law § 165.25 encourage arbitrary or discriminatory application. The law, easily followed by most citizens of this State, provides objective criteria which must be observed by a police officer prior to arrest. It is not dependent upon the subjective conclusions of a complainant or an arresting officer as to what is annoying (Coates v City of Cincinnati, 402 US 611; People v New York Trap Rock Corp., 57 N.Y.2d 371) or suspicious (People v Berck, 32 N.Y.2d 567, cert denied 414 US 1093). This is not a statute which casts such a large net that it allows officials to round up those they have concluded to be undesirable (see, e.g., Papachristou v City of Jacksonville, supra). On the contrary, a person may be arrested pursuant to Penal Law § 165.25 if the police have probable cause to believe, based upon observable conduct, that defendant unnecessarily and intentionally placed his hand in the proximity of another's pocket or handbag.

We have examined the remaining contentions of the defendants 309*309 in each case and have found those which are preserved to be without merit.

The orders of the Appellate Term should be affirmed.

In each case: Orders affirmed.

[*] Penal Law § 165.25 provides:

"A person is guilty of jostling when, in a public place, he intentionally and unnecessarily:

"1. Places his hand in the proximity of a person's pocket or handbag; or

"2. Jostles or crowds another person at a time when a third person's hand is in the proximity of such person's pocket or handbag."

Robert M. Morgenthau, District Attorney (Barbara A. Sheehan and Norman Barclay of counsel), for appellant.

Michele Maxian and Caesar D. Cirigliano for respondents.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, HANCOCK, JR., and BELLACOSA concur.

378*378TITONE, J.

The issue presented on these two appeals is whether Penal Law § 240.35 (7), which provides that "[a] person is guilty of loitering when he * * * [l]oiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence", is 379*379 constitutional. We hold that this statute is unconstitutionally vague under the Due Process Clauses of the Federal and State Constitutions because it fails to give fair notice to the ordinary citizen that the prohibited conduct is illegal, it lacks minimal legislative guidelines, thereby permitting arbitrary enforcement and, finally, it requires that a citizen relinquish his constitutional right against compulsory self-incrimination in order to avoid arrest.

I.

People v Bright

On the evening of March 19, 1985, a New York City policeman observed defendant Bright displaying an open satchel to a passerby on the Long Island Railroad Concourse located in Pennsylvania Station. When Bright noticed that the officer was watching him, he quickly closed the satchel. The policeman approached Bright and the following conversation took place:

"Officer: What are you doing here?

"Defendant: Why are you bothering me.

"Officer: Got a ticket to take the train?

"Defendant: No.

"Officer: Any money to buy a ticket?

"Defendant: No.

"Officer: Are you going to take the train?

"Defendant: No."

Based solely on this exchange, the officer escorted Bright to the Long Island Railroad police office, where he asked Bright to produce identification. When Bright failed to produce any, the officer informed him that he was under arrest for loitering pursuant to Penal Law § 240.35 (7). Bright was read his Miranda warnings and asked to empty his pockets. As Bright removed a piece of paper from his trouser pocket, two credit cards and four other identification cards fell to the floor, none of which belonged to him. Bright then told the officer that he had found the various cards and planned to sell them.

Defendant Bright was charged by indictment with two counts of criminal possession of stolen property in the second degree (Penal Law § 165.45 [2]), and one count of criminal possession of stolen property in the third degree (Penal Law § 165.40). On his pretrial motion to suppress the physical 380*380 evidence, Bright argued that he was arrested without probable cause, and that his arrest was illegal, since the loitering statute pursuant to which he was arrested was unconstitutional. The Supreme Court, relying on its decision in People v Velazquez (77 Misc 2d 749), held that the statute was unconstitutionally vague and granted the suppression motion on the theory that the arrest was violative of the defendant's constitutional rights. A unanimous Appellate Division affirmed, without opinion.

People v Clark

On the morning of April 24, 1985, defendant Clark was in the Port Authority Bus Terminal located in New York City when he was approached by a Port Authority police officer. Although the record is not entirely clear as to what occurred next, the officer arrested Clark for loitering in violation of Penal Law § 240.35 (7) when he was unable to give a satisfactory explanation regarding his presence in the bus terminal. As an incident to that arrest, the officer searched Clark and found a cellophane envelope containing cocaine and a glass pipe with cocaine residue in the defendant's jacket pocket.

Clark was charged with loitering (Penal Law § 240.35 [7]), and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). At his arraignment before the Criminal Court of the City of New York, Clark moved to dismiss the loitering charge on the ground that Penal Law § 240.35 (7) was unconstitutionally vague. His motion was denied, and he was permitted to plead guilty to a violation of the loitering statute in satisfaction of both charges. On appeal before the Appellate Term, First Department, the court held that the statute was unconstitutionally vague and reversed the conviction, dismissed the loitering charge and remanded the case to the Criminal Court for further proceedings on the charge of criminal possession of a controlled substance.

In each of these two cases, a Judge of this court granted the People leave to appeal so that we could consider the constitutionality of Penal Law § 240.35 (7). We have examined the People's arguments in support of the statute, but agree with the defendants that the statute is void for vagueness, and we now affirm in both cases.^[1]

381*381II.

Penal Law § 240.35 (7) is derived from two former enactments, Penal Law § 1990-a (2) (L 1939, ch 391, as amended by L 1941, ch 835, and L 1951, ch 269) and Penal Law § 150 (2) (L 1953, ch 139). Under former Penal Law § 1990-a (2), a person was guilty of an offense if he loitered or was found sleeping "about any toilet, station or station platform of a subway or elevated railway or of a railroad" and was "unable to give satisfactory explanation of his presence".

The legislative history of Penal Law § 1990-a (2) indicates that the subways and railroad stations had become an attractive place for "fakers, perverts, pickpockets, loiterers, sleepers, flimflam men, etc., [who] infest[ed] these properties, night and day, necessitating constant policing by a large force of special officers and state railway officers" (Bill Jacket, L 1939, ch 391, Senate Mem, at 4). Public officials and railroad authorities sought to prevent "peddlers and loiterers from harassing and annoying people on the railroad properties" (id., Senate Mem, at 3). The Legislature, aware that the courts were refusing to convict people arrested in the train and subway stations of vagrancy or disorderly conduct, considered the bill necessary to protect the traveling public, especially because of the desire to "clean up" the subways and other railroad facilities in anticipation of the World's Fair held in New York City in 1939 (id., Mayor's letter, at 10-11; Mem to Governor, at 14; see also, People v Bell, 306 N.Y. 110, 113 [danger to public "arises from the congregation of nondescript characters at such locations"]).

Former Penal Law § 150 (2) made it an offense to loiter "about any toilet, area, station, station platform, waiting room or other appurtenance of an air or bus terminal" unless the loiterer was able "to give satisfactory explanation of his presence". This statute, like its counterpart, Penal Law § 1990-a (2), sought to provide "maximum passenger safety, comfort and convenience" by ridding these facilities of "many undesirable characters" who were loitering, soliciting business and begging in passenger terminals (Bill Jacket, L 1953, ch 139, Mem in support, at 4-5).

In 1965, the Legislature enacted the statute at issue here, 382*382 Penal Law § 240.35 (7), restating in more general terms former Penal Laws §§ 150 and 1990-a (2) (see, Hechtman, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 240.35 [7], at 317). Under the statute, one is guilty of a violation if he "[l]oiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence" (Penal Law § 240.35 [7]). A "transportation facility" is defined as "any conveyance, premises or place used for or in connection with public passenger transportation, whether by air, railroad, motor vehicle or any other method. It includes aircraft, watercraft, railroad cars, buses, and air, boat, railroad and bus terminals and stations and all appurtenances thereto" (Penal Law § 240.00 [2]).

III.

An enactment of our Legislature is presumed to be valid and the heavy burden of demonstrating that a statute is unconstitutional rests with the one seeking to invalidate the statute (Matter of Van Berkel v Power, 16 N.Y.2d 37, 40; Fenster v Leary, 20 N.Y.2d 309, 314; People v Pagnotta, 25 N.Y.2d 333, 337). In a challenge to the constitutionality of a penal law on the grounds of vagueness, it is well settled that a two-pronged analysis is required. First, 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 N.Y.2d 302, 307; People v Smith, 44 N.Y.2d 613, 618; Matter of Sussman v New York State Organized Crime Task Force, 39 N.Y.2d 227, 234; People v Heller, 33 N.Y.2d 314, 328; People v Berck, 32 N.Y.2d 567, 569; People v Pagnotta, supra, at 337).

The rationale underlying the requirement that a penal statute provide adequate notice is the notion "that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed" (United States v Harriss, 347 US 612, 617; see also, Colten v Kentucky, 407 US 104, 110; Lanzetta v New Jersey, 306 US 451, 453). Consistent with our concept of basic fairness, due process requires that a penal statute be sufficiently definite by its terms so as "to give a person of ordinary intelligence fair 383*383 notice that his contemplated conduct is forbidden by the statute" (United States v Harriss, supra, at 617; see also, Colten v Kentucky, supra, at 110; Jordan v De George, 341 US 223, 230-232; Matter of Sussman v New York State Organized Crime Task Force, supra, at 234; People v Berck, supra, at 569). For this reason, under our State and Federal Constitutions, the Legislature may not criminalize conduct that is inherently innocent merely because such conduct is "sometimes attended by improper motives," since to do so would not fairly inform the ordinary citizen that an otherwise innocent act is illegal (People v Bunis, 9 N.Y.2d 1, 4; see, People v Pagnotta, 25 N.Y.2d 333, 337, supra; People v Diaz, 4 N.Y.2d 469, 470-471; People v Kuc, 272 N.Y. 72, 75-76; see also, Smith v Goguen, 415 US 566, 574 ["`men of common intelligence' should not be forced to guess at the meaning of the criminal law"]; Lanzetta v New Jersey, supra, at 453).

The other prong of the test, which requires that a penal law not permit arbitrary or discriminatory enforcement is, perhaps, the more important aspect of the vagueness doctrine (see, Kolender v Lawson, 461 US 352, 358, supra). The Legislature must include in a penal statute "minimal guidelines to govern law enforcement" (id., quoting Smith v Goguen, 415 US 566, 574, supra). The absence of objective standards to guide those enforcing the laws permits the police to make arrests based upon their own personal, subjective idea of right and wrong. A vague statute "confers on police a virtually unrestrained power to arrest and charge persons with a violation" (Lewis v City of New Orleans, 415 US 130, 135 [Powell, J., concurring]), and "furnishes a convenient tool for `harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure'" (Papachristou v City of Jacksonville, 405 US 156, 170, supra, quoting Thornhill v Alabama, 310 US 88, 97-98).

The term "loiter" or "loitering" has a commonly accepted meaning that has evolved over the years, and connotes the act of remaining about or hanging around a place without any apparent purpose (see, People v Merolla, 9 N.Y.2d 62, 66, cert denied 365 US 872; People v Johnson, 6 N.Y.2d 549, 552, 554 [Fuld, J., dissenting]; People v Diaz, 4 N.Y.2d 469, 470, supra; People v Bell, 306 N.Y. 110, 113, 116-117, supra; People v Taggart, 66 Misc 2d 344, 346-347). However, a statute that merely prohibits loitering, without more, is unconstitutionally vague. Such a generalized law fails to distinguish between 384*384 conduct calculated to cause harm and conduct that is essentially innocent, thereby failing to give adequate notice of what conduct is prohibited. Further, such a statute impermissibly places complete discretion in the hands of the police to determine whom they will arrest (People v Berck, 32 N.Y.2d 567, 571, supra; People v Merolla, supra, at 67; People v Diaz, supra, at 471).

We have upheld loitering statutes only when they either prohibited loitering for a specific illegal purpose or loitering in a specific place of restricted public access (see, People v Berck, supra, at 570; see also, People v Smith, 44 N.Y.2d 613, supra; People v Pagnotta, 25 N.Y.2d 333, supra; People v Merolla, supra; People v Johnson, supra). Thus, statutes making it a crime to loiter for the purpose of using illegal drugs or for the purpose of engaging in prostitution have been upheld. Such laws provide the ordinary citizen with adequate notice of the exact conduct prohibited, and require the officer on-the-scene to objectively observe some definable impermissible act in order to find probable cause to arrest, thereby foreclosing the possibility that the law will be arbitrarily enforced (see, People v Smith, supra [loitering for purpose of prostitution]; People v Pagnotta, supra [loitering for purpose of using illegal drugs]). Similarly, we have held constitutional statutes prohibiting loitering in a specifically restricted place, such as a school or waterfront facility, since these locations were not open to the public, were places where illegal activity was notorious, and were normally frequented only by those who are affiliated with the activity being carried on there (see, People v Merolla, supra [waterfront facility]; People v Johnson, supra [loitering in schools]).

The thrust of the People's argument on this appeal in support of the statute is twofold. First, the People argue that the "satisfactory explanation" provision in the statute is constitutionally permissible. Second, the People take the position that Penal Law § 240.35 (7) falls within the category of statutes prohibiting loitering in specific places of restricted public access. To support these arguments, the People rely on People v Bell (306 N.Y. 110, supra), which upheld against constitutional challenge former Penal Law § 1990-a (2), a statute very similar to the one at issue here. In Bell, we held that a provision permitting the police to arrest a person for loitering unless he provides a "satisfactory explanation of his presence" is not a substantive element of the crime, but merely a procedural device to be followed by law enforcement 385*385 officials in order to prevent the arrest of those who are innocent of any wrongdoing (id., at 114-116). We further held that a subway station or railroad station was a place of restricted public access (id., at 114). Nevertheless, we find the People's arguments unpersuasive and in direct opposition to precedents that have emerged since Bell was decided from both this court and the United States Supreme Court.

Regardless of whether one characterizes the "satisfactory explanation" requirement as substantive or procedural, in People v Berck, we concluded that a similar provision in a loitering statute that required a person to "identify himself" or "give a reasonably credible account of his conduct and purposes" was unconstitutional (People v Berck, 32 N.Y.2d 567, 569, n 1; 571-572, supra). We held that under this provision, "enforcement of the law depends entirely upon whether the arresting officer is satisfied that a suspect has given" an acceptable account of his presence (People v Berck, supra, at 571). Similarly, in Kolender v Lawson (461 US 352, supra), the court invalidated a California loitering statute that required a person to provide identification and to account for his presence when requested by a peace officer. The court concluded that the statute contained "no standard for determining what a suspect has to do in order to satisfy the requirement" (Kolender v Lawson, supra, at 358). Thus, the court held that the statute was unconstitutionally vague because it vested "virtually complete discretion in the hands of the police" without any legislative guidelines (id.). The statutory mandate at issue here that a suspect provide the officer with a "satisfactory explanation of his presence" is indistinguishable from these other "credible account" provisions. The determination as to what constitutes a "satisfactory explanation" is left entirely up to the policeman on the scene without any legislative guidance whatsoever, and renders the statute unconstitutional (see also, People v Schanbarger, 24 N.Y.2d 288).

Requiring a person suspected of violating the loitering statute provide a "satisfactory explanation" to avoid arrest is also violative of a citizen's right not to answer questions posed by law enforcement officers. Although a police officer may have the right under appropriate circumstances to stop a person in a public place and make inquiry (see, Terry v Ohio, 392 US 1), a citizen is under no obligation to provide any explanation regarding his conduct. He is permitted to remain silent under the Fifth Amendment to the Federal Constitution and article I, section 6 of the State Constitution (People v Schanbarger, supra). 386*386However, under Penal Law § 240.35 (7), he is faced with the choice of either foregoing his constitutional right to remain silent in the hope that his explanation will satisfy that particular law enforcement official, or invoking his constitutional right to remain silent and being arrested. As we held in People v Schanbarger (supra, at 292), the failure of a suspect to answer an inquiry of a policeman "cannot constitute a criminal act". Although "an officer may have a right to inquire into suspicious circumstances, a suspect's silence may not be used as a predicate for a separate offense such as loitering" (People v Berck, 32 N.Y.2d 567, 574, supra; Kolender v Lawson, supra, at 362-365 [Brennan, J., concurring]). A provision such as this one effectively deprives the citizen of his constitutional right to remain silent, since his failure to speak will result in certain arrest under the statute (cf., Davis v Mississippi, 394 US 721, 727, n 6; Olmstead v United States, 277 US 438, 476-478 [Brandeis, J., dissenting]; People v Conyers, 49 N.Y.2d 174). It punishes a suspect for exercising his constitutional right to remain silent and impermissibly transforms the invocation of this right into a criminal act.

Even if the statute did not contain the "satisfactory explanation" requirement, however, we would still be compelled to conclude that, as applied, the statute is unconstitutionally vague. Under the Penal Law, a "transportation facility" is defined in such a broad, all-encompassing manner so as to include some facilities that are more analogous to the public street than to a specific area of restricted public access that gives notice of its prohibition against loitering. The statutory definition that embraces "all appurtenances thereto" is also too vague and wide ranging in the context of this case. At the time People v Bell (306 N.Y. 110, supra) was decided, railroad stations offered few amenities, serving primarily as a place to purchase a ticket and wait for a train. Since that time, several of our transportation facilities have evolved into large, multipurpose complexes, replete with wide concourses along which numerous retail establishments of all kinds implicitly invite the public to enter, browse and shop.

The two facilities involved here, the Long Island Railroad Station and the Port Authority Bus Terminal, have numerous entrances and exits to the street, the New York City subway lines, as well as to buses, trains and house many other 387*387 businesses that serve the general public. Thousands of commuters, shoppers and other people enter these terminals for a wide variety of reasons daily (see, Wolin v Port of N. Y. Auth., 392 F.2d 83, 85, 88-89; People v Velazquez, 77 Misc 2d 749, supra). As the Second Circuit has stated, the Port Authority Bus Terminal, "with its many adjuncts, becomes something of a small city" (Wolin v Port of N. Y. Auth., supra, at 89). Similarly, Pennsylvania Station is also something of a small, indoor city. These facilities are not places of restricted public access like the school in People v Johnson (supra) or the waterfront facility in People v Merolla (supra), which gave the loiterer notice that he had no right to be there, but, rather, large, public areas.^[2]

Since both transportation facilities at issue here are, in reality, "public places," the statute, as applied, does not satisfy due process, since it fails to give unequivocal notice to the unwary that an activity as innocuous as mere loitering is prohibited (see, People v Berck, 32 N.Y.2d 567, 569, supra). Indeed, facilities such as Pennsylvania Station and Port Authority Bus Terminal are so public in nature, that they actually invite conduct that could be construed as loitering. Thus, in these two cases, the statute has the effect of prohibiting loitering in a public place and cannot withstand constitutional scrutiny (see, People v White, 48 N.Y.2d 849; People v Berck, supra; People v Diaz, 4 N.Y.2d 469, supra).

Moreover, the statute is unconstitutionally vague, since it provides absolutely no legislative "guidelines governing the determination as to whether a person is engaged in suspicious loitering" in places of unrestricted public access (People v Berck, supra, at 571). In such large, urban transportation facilities, many people are engaged in activity that is seemingly aimless to the objective observer, such as waiting for a train, strolling about the concourse, or waiting for the rain to stop. Nevertheless, who will be stopped, questioned, and arrested under this statute is left "solely up to the discretion of the police officer" on the scene (People v Berck, supra, at 571).

Inasmuch as we have concluded that Penal Law § 240.35 (7) 388*388 is unconstitutional, we need not reach defendant Bright's claim that the police lacked probable cause to arrest him.

Accordingly, the orders appealed from in both cases should be affirmed.

In each case: Order affirmed.

[1] In affirming, we do not address the issue of whether evidence obtained pursuant to an arrest under an unconstitutional statute necessarily requires that such evidence be suppressed, since the People apparently did not raise the issue below and have not raised this question on appeal (see, Michigan v DeFillippo, 443 US 31).

[2] Although we upheld the statute in People v Merolla (9 N.Y.2d 62) on the ground that a waterfront facility was a sufficiently restricted area, we did note that the statutory requirement that one not loiter within 500 feet of a waterfront facility might be susceptible to unconstitutional application.

OPINION OF THE COURT

GARCIA, J.

**1072 *310 This case calls upon us to determine the constitutionality of Syracuse Noise Control Ordinance (Revised General Ordinances of City of Syracuse) § 40–16(b) (Sound reproduction) (hereinafter Syracuse Noise Ordinance), which prohibits the creation of “unnecessary noise” emanating beyond 50 feet from a motor vehicle operated on a public highway. Specifically, we are asked whether this section is unconstitutional pursuant to our decision in People v. New York Trap Rock Corp., 57 N.Y.2d 371, 456 N.Y.S.2d 711, 442 N.E.2d 1222 (1982). For the reasons stated below, we conclude that the statute does not “offend the constitutional void-for-vagueness doctrine of due process” (id. at 374, 456 N.Y.S.2d 711, 442 N.E.2d 1222).

Defendant was charged with criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree and with sound reproduction in violation of Syracuse City Ordinance § 40–16(b). Defendant’s vehicle was stopped by police officers who believed his car stereo was operating at a volume that could be heard more than 50 feet away in violation of section 40–16(b). During that stop, the arresting officers discovered defendant was in possession of crack cocaine, some of which was in plain view.

Syracuse Noise Ordinance § 40–4 sets forth the “[g]eneral prohibition” against “unnecessary noise,” stating: “No person shall make, continue or cause or permit to be made any unnecessary noise.” “Unnecessary noise” is defined in section 40–3(u) as “any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a reasonable person of normal sensibilities, or which causes injury to animal life or damage to property or business”(emphasis added). This subdivision includes 11 standards “to be considered in determining whether unnecessary noise exists in a given situation”(id. § 40–3[u] ). The Syracuse Noise Ordinance also contains 14 sections listing acts that constitute prima facie evidence of a violation of the ordinance (id. § 40–4). Here, the indictment specifically charged, and defendant was convicted of, one of these 14 enumerated acts:

“No person shall operate, play or permit the operation or playing of any radio, television, phonograph, drum, musical instrument, sound amplifier or similar device which produces, reproduces or amplifies sound: ...

*311 “(b) In such a manner as to create unnecessary noise at fifty (50) feet from such device, when operated in or on a motor vehicle on a public highway”(id. § 40–16[b] ).

Defendant moved to suppress the crack cocaine discovered during the traffic stop. At the suppression hearing, two police officers testified that the music could be heard from at least 100 feet away from defendant’s vehicle. At the conclusion of the hearing, defendant moved to dismiss the count charging a violation of section 40–16(b), arguing that the Syracuse Noise Ordinance was unconstitutional under the **1073 ***355 void-for-vagueness doctrine. He further argued that suppression of the drugs seized as a result of the stop was required.

Supreme Court denied both the dismissal and suppression motions. Although the court determined the Syracuse Noise Ordinance was arguably unconstitutional, Supreme Court concluded “that the Appellate Division should make the determination as to whether or not the ordinance passes constitutional muster.” Supreme Court further determined “[t]here was sufficient proof of probable cause to believe the defendant violated Section 40–16(b) of the Syracuse Noise Ordinance, which prohibits dissemination of ‘unnecessary noise’ beyond 50 feet of an automobile, because there was testimony on this point that the court has found credible.”

At the subsequent bench trial, which was conducted on stipulated proof, defendant was convicted as charged.

On appeal, the Appellate Division unanimously affirmed, holding that the Syracuse Noise Ordinance was constitutional (128 A.D.3d 1497, 8 N.Y.S.3d 823 [4th Dept.2015] ). The Appellate Division rejected defendant’s argument that the ordinance was unconstitutionally vague, reasoning that while a similar local noise ordinance was held to be void for vagueness in Trap Rock, the Syracuse Noise Ordinance at issue “defines ‘unnecessary noise’ with reference to an objective standard of reasonableness rather than a subjective standard, and thus it is not unconstitutionally vague on that ground” (id. at 1498, 456 N.Y.S.2d 711, 442 N.E.2d 1222, quoting Syracuse Noise Ordinance § 40–3 [u] ). The Court further found that section 40–16(b) was not unconstitutionally vague because it was “tailored to a specific context—the creation of ‘unnecessary noise’ beyond 50 feet of a motor vehicle on a public highway” (id. at 1498–1499, 456 N.Y.S.2d 711, 442 N.E.2d 1222). A Judge of this Court granted leave to appeal (26 N.Y.3d 1011, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ), and we now affirm.

^[1] Defendant has challenged the constitutionality of the Syracuse Noise Ordinance both on its face and as applied. *312 However, when a “defendant makes an as-applied ... challenge and the court repudiates it,” as we do here, “the facial validity of the statute is confirmed” because the court “necessarily concluded that there is at least one person—the defendant—to whom the statute may be applied constitutionally” (People v. Stuart, 100 N.Y.2d 412, 422–423, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ).

^[2] Municipal ordinances are afforded an “exceedingly strong presumption of constitutionality” (Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 11, 359 N.E.2d 337 [1976]; see also Brady v. State of New York, 80 N.Y.2d 596, 602, 592 N.Y.S.2d 955, 607 N.E.2d 1060 [1992] ) and should “be construed so as to avoid constitutional issues if such a construction is fairly possible” (FGL & L Prop. Corp. v. City of Rye, 66 N.Y.2d 111, 120, 495 N.Y.S.2d 321, 485 N.E.2d 986 [1985] ). We have further recognized that “noise regulation poses special problems of draftsmanship and enforcement,” as the “nature of sound makes resort to broadly stated definitions and prohibitions not only common but difficult to avoid” (Trap Rock, 57 N.Y.2d at 379, 456 N.Y.S.2d 711, 442 N.E.2d 1222).

^{[3] [4] [5]} With these general principles in mind, we analyze this vagueness challenge using a two-part test (Stuart, 100 N.Y.2d at 420, 765 N.Y.S.2d 1, 797 N.E.2d 28; People v. Nelson, 69 N.Y.2d 302, 307, 514 N.Y.S.2d 197, 506 N.E.2d 907 [1987]; People v. Smith, 44 N.Y.2d 613, 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032 [1978] ). First, we must determine “whether the statute in question is sufficiently definite **1074 ***356 to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden” (Stuart, 100 N.Y.2d at 420, 765 N.Y.S.2d 1, 797 N.E.2d 28 [internal quotation marks omitted], citing Nelson, 69 N.Y.2d at 307, 514 N.Y.S.2d 197, 506 N.E.2d 907; see also Smith, 44 N.Y.2d at 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032, quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 [1954] ). Second, we must determine “ whether the enactment provides officials with clear standards for enforcement” so as to avoid “resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application” (Stuart, 100 N.Y.2d at 420–421, 765 N.Y.S.2d 1, 797 N.E.2d 28, quoting Grayned v. City of Rockford, 408 U.S. 104, 108–109, 92 S.Ct. 2294, 33 L.Ed.2d 222 [1972]; Nelson, 69 N.Y.2d at 307, 514 N.Y.S.2d 197, 506 N.E.2d 907). Accordingly, a statute is “unconstitutionally vague under the Due Process Clauses of the Federal and State Constitutions [where] it fails to give fair notice to the ordinary citizen that the prohibited conduct is illegal, [and] it lacks minimal legislative guidelines, thereby permitting arbitrary enforcement” (People v. Bright, 71 N.Y.2d 376, 379, 526 N.Y.S.2d 66, 520 N.E.2d 1355 [1988] ). On the other hand,

“[a] statute which employs terms having an accepted meaning long recognized in law and life cannot be said to be so vague and indefinite as to afford *313 the defendant insufficient notice of what is prohibited or inadequate guidelines for adjudication, even though there may be an element of degree in the definition as to which estimates might differ” (People v. Cruz, 48 N.Y.2d 419, 428, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979] [internal quotation marks and citations omitted] ).

Contrary to defendant’s claim, the Syracuse Noise Ordinance challenged here does not suffer from the same constitutional infirmities as the Poughkeepsie Noise Ordinance (Unnecessary Noise Control Ordinance of Town of Poughkeepsie [adopted July 13, 1977] ) challenged in Trap Rock. The Poughkeepsie Noise Ordinance contained a general provision prohibiting a person from making “any unnecessary noise,” defined as “any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a person ” (Trap Rock, 57 N.Y.2d at 375, 456 N.Y.S.2d 711, 442 N.E.2d 1222 [emphasis added] ). That statute listed 10 non-exclusive standards to be considered in determining whether “unnecessary noise” existed in a given situation (id. at 375–376, 456 N.Y.S.2d 711, 442 N.E.2d 1222). The Poughkeepsie Noise Ordinance then listed 17 acts which would violate the law if they created unnecessary noise; notably, however, violation of any one of those 17 subdivisions would also constitute a violation of the general provision against making “any unnecessary noise” (id. at 376, 456 N.Y.S.2d 711, 442 N.E.2d 1222). The defendant in Trap Rock was convicted of violating one of the specific subdivisions as well as the general provision based upon the same conduct.

In Trap Rock, we turned first to the specific subdivision defendant had been found to violate—the making of unnecessary noise within 300 feet of the boundary line of a residential district—and noted that it was unreasonably expanded by the phrase “[w]ithout limiting the above language” (id. at 380, 456 N.Y.S.2d 711, 442 N.E.2d 1222). In effect, the Trap Rock defendant was convicted of violating that specific provision even though the commercial loading activity at issue took place 2,400 feet from any residential boundary (id.). We found “still more egregious” the fact that the identical conduct also resulted **1075 ***357 in conviction under the blanket provision against making “any unnecessary noise”—a section “permeated with vagueness”(id.). We found that the subjective definition of “unnecessary noise” in that provision—“any excessive or unusually loud sound or any sound which ... annoys ... a person”—could result in convictions based solely on the malice or animosity of a cantankerous neighbor (id.). The 10 specific standards that were articulated did not save the statute, as *314 the standards were themselves vague and non-exclusive (id. at 381, 456 N.Y.S.2d 711, 442 N.E.2d 1222). As a result, we held that the pervasive nature of the statute’s catchall effect made the ordinance a ready candidate for ad hoc enforcement and that, accordingly, the Poughkeepsie Noise Ordinance was unconstitutional (id.).

^[6] The crucial difference here is that the Syracuse Noise Ordinance defines “unnecessary noise” based on an objective standard—specifically, “a reasonable person of normal sensibilities” (Syracuse Noise Ordinance § 40–3 [u] ). As we concluded in People v. Bakolas, 59 N.Y.2d 51, 462 N.Y.S.2d 844, 449 N.E.2d 738 (1983), decided less than a year after Trap Rock, the “term ‘unreasonable noise’ is not incapable of definition. Rather, it describes a noise of a type or volume that a reasonable person, under the circumstances, would not tolerate” (id. at 53, 462 N.Y.S.2d 844, 449 N.E.2d 738). The Bakolas Court distinguished Trap Rock, finding that an objective standard prevents arbitrary and discriminatory “enforcement according to the ‘ “malice or animosity of a cantankerous neighbor” ’ or the ‘ “boiling point of a particular person” ’ ” (Bakolas, 59 N.Y.2d at 54, 462 N.Y.S.2d 844, 449 N.E.2d 738, quoting Trap Rock, 57 N.Y.2d at 380, 456 N.Y.S.2d 711, 442 N.E.2d 1222).

Additionally, unlike the Poughkeepsie Noise Ordinance, Syracuse Noise Ordinance § 40–16(b) is “tailored to a specific context”—limiting the prohibition to creating “unnecessary noise” by playing a radio or similar device that can be heard at least 50 feet away when being operated in a motor vehicle on a public highway. We recognized in Trap Rock that “antinoise cases” have upheld noise regulations that apply within limited contexts and convey “an accepted meaning” (Cruz, 48 N.Y.2d at 428, 423 N.Y.S.2d 625, 399 N.E.2d 513) to such otherwise imprecise words as “loud” or “excessive” (Trap Rock, 57 N.Y.2d at 379, 456 N.Y.S.2d 711, 442 N.E.2d 1222, quoting People v. Byron, 17 N.Y.2d 64, 67, 268 N.Y.S.2d 24, 215 N.E.2d 345 [1966] ). For example, in People v. Byron, we upheld a motor vehicle statute that mandated that “[e]very motor vehicle, operated or driven upon the highways of the state, shall at all times be equipped with an adequate muffler ... to prevent any excessive or unusual noise” (id. at 66, 268 N.Y.S.2d 24, 215 N.E.2d 345). This Court concluded “[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 his vehicle” (id. at 67, 268 N.Y.S.2d 24, 215 N.E.2d 345). We agree with the Appellate Division’s conclusion below that “ ‘[w]hat is usual noise in the operation of a car [radio or other sound production device] has become common knowledge ... and any ordinary motorist should have no difficulty in *315 ascertaining’ whether the noise in question violates the applicable standard” (128 A.D.3d at 1499, 8 N.Y.S.3d 823 quoting Byron, 17 N.Y.2d at 67, 268 N.Y.S.2d 24, 215 N.E.2d 345).

Accordingly, Syracuse Noise Ordinance § 40–16(b) is sufficiently definite to put a person on notice that playing music which **1076 ***358 can be heard over 50 feet from such person’s car on a public road, in a manner that would annoy or disturb “a reasonable person of normal sensibilities” is forbidden conduct and the objective standard affords police sufficiently “clear standards for enforcement” (Stuart, 100 N.Y.2d at 420, 765 N.Y.S.2d 1, 797 N.E.2d 28). Moreover, unlike the Poughkeepsie Noise Ordinance at issue in Trap Rock, section 40–16 does not contain any “without limiting the above language” clause that would make it possible to convict defendant of violating section 40–16(b) for creating unnecessary noise that could be heard at distances less than 50 feet from his vehicle.

For the reasons set forth above, we hold that the Syracuse Noise Ordinance is constitutional.^* We have considered defendant’s remaining contentions on appeal and conclude they are without merit. Accordingly, the Appellate Division order should be affirmed.

Chief Judge DiFIORE, Judges PIGOTT, RIVERA, ABDUS–SALAAM, STEIN and FAHEY, concur.

Order affirmed.