        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

539
KA 12-00552
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HARVERT STEPHENS, ALSO KNOWN AS HAVERT STEPHENS,
DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.

ROBERT P. STAMEY, CORPORATION COUNSEL, SYRACUSE (ANN MAGNARELLI
ALEXANDER OF COUNSEL), FOR CITY OF SYRACUSE, AMICUS CURIAE.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered October 26, 2011. The judgment
convicted defendant, upon a nonjury verdict, of criminal possession of
a controlled substance in the third degree, criminal possession of a
controlled substance in the fifth degree and sound reproduction.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]), criminal
possession of a controlled substance in the fifth degree (§ 220.06
[5]), and sound reproduction under the Syracuse Noise Control
Ordinance (Revised General Ordinances of City of Syracuse § 40-16 [b]
[hereafter, City Ordinance]). On August 24, 2010, defendant’s vehicle
was stopped by the police because his vehicle’s stereo was allegedly
operating at an extremely loud volume. As a result of the traffic
stop, the police recovered an amount of crack cocaine from defendant’s
vehicle.

     Defendant contends that the judgment should be reversed because
the City Ordinance is unconstitutionally vague, specifically
concerning its definition of “unnecessary noise,” and the police did
not have probable cause to stop his vehicle. We reject defendant’s
contention that the City Ordinance is unconstitutionally vague.
Section 40-16 (b), the subdivision under which defendant was
convicted, provides that “[n]o person shall operate, play or permit
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                                                         KA 12-00552

the operation or playing of any . . . device which produces,
reproduces or amplifies sound . . . [i]n 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” (emphasis added). The
term “unnecessary noise” is defined in section 40-3 (u) of the City
Ordinance 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.” The City Ordinance also provides a nonexclusive list
of 11 standards to consider in determining whether noise is
unnecessary (see id.).

     Municipal ordinances “enjoy ‘an exceedingly strong presumption of
constitutionality’ ” (Cimato Bros. v Town of Pendleton, 270 AD2d 879,
879, lv denied 95 NY2d 757, quoting Lighthouse Shores v Town of Islip,
41 NY2d 7, 11), and such legislative enactments “are to be construed
so as to avoid constitutional issues if such a construction is fairly
possible” (FGL & L Prop. Corp. v City of Rye, 66 NY2d 111, 120; see
McKinney’s Cons Laws of NY, Book 1, Statutes § 150). “The void-for-
vagueness doctrine embodies a ‘rough idea of fairness’ ” (Quintard
Assoc. v New York State Liq. Auth., 57 AD2d 462, 465, lv denied 42
NY2d 805, appeal dismissed 42 NY2d 973, quoting Colten v Kentucky, 407
US 104, 110), and “an impermissibly vague ordinance is a violation of
the due process of law” (Matter of Turner v Municipal Code Violations
Bur. of City of Rochester, 122 AD3d 1376, 1377; see People v Stuart,
100 NY2d 412, 419). In addressing such a challenge, courts first
“must determine whether the statute in question is sufficiently
definite to give a person of ordinary intelligence fair notice that
his [or her] contemplated conduct is forbidden by the statute”
(Stuart, 100 NY2d at 420 [internal quotation marks omitted]).
“Second, the court must determine whether the enactment provides
officials with clear standards for enforcement” (id.; see People v New
York Trap Rock Corp., 57 NY2d 371, 378-379).

     Defendant contends that the City Ordinance is unconstitutionally
vague because it is similar to a different ordinance voided by the
Court of Appeals in New York Trap Rock Corp. We reject defendant’s
contention. The ordinance here, unlike that in New York Trap Rock
Corp., 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 (see People v
Bakolas, 59 NY2d 51, 53-55). Specifically, it defines “unnecessary
noise” as noise that would offend “a reasonable person of normal
sensibilities” (City Ordinance § 40-3 [u]). The ordinance at issue in
New York Trap Rock Corp., however, contained a subjective standard,
which defined “unnecessary noise” as that which offends “a person”
(see id. at 375). The subjective standard essentially permitted a
conviction to “rest solely upon the ‘malice or animosity of a
cantankerous neighbor’ . . . or ‘boiling point of a particular
person[,]’ . . . situations which are the product, not only of
imprecise standards, but of no standard at all” (id. at 380). There
is no such constitutional infirmity in the City Ordinance at issue
here.
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                                                         KA 12-00552

     We further conclude that the City Ordinance is not
unconstitutionally vague because the section under which defendant was
convicted was tailored to a specific context—the creation of
“unnecessary noise” beyond 50 feet of a motor vehicle on a public
highway (City Ordinance § 40-16 [b]). In our view, “[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 ascertaining” whether the noise in
question violates the applicable standard (People v Byron, 17 NY2d 64,
67; see People v Frie, 169 Misc 2d 407, 410). Based on the foregoing,
we conclude that the ordinance in question was “sufficiently definite”
to put defendant on notice that his conduct was forbidden, and that it
provided the police “with clear standards for enforcement” (Stuart,
100 NY2d at 420).

     Defendant’s First Amendment challenge to the City Ordinance is
unpreserved for our review (see CPL 470.05 [2]), and we decline to
exercise our power to address that challenge as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). Furthermore, we
conclude that defense counsel’s failure to make a First Amendment
argument before the trial court did not constitute ineffective
assistance inasmuch as that “ ‘argument . . . ha[d] little or no
chance of success’ ” (People v Caban, 5 NY3d 143, 152, quoting People
v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702; see People v
Bradberry, 68 AD3d 1688, 1691, lv denied 14 NY3d 838).

     Finally, contrary to defendant’s contention, we conclude that
there was ample evidence to support the court’s determination that the
police had probable cause to initiate the traffic stop on the ground
that defendant violated the City Ordinance (see generally People v
Robinson, 97 NY2d 341, 349-350).


                                                Frances E. Cafarell




Entered:   May 8, 2015
                                                Clerk of the Court
