"The First Amendment draws no distinction between the various methods of communicating ideas." (Superior Films v Dept. of Education, 346 US 587 [1954]).

The defendant is charged in an accusatory instrument as an Unlicensed General Vendor (Administrative Code §20.453). In a motion dated March 8, 2010, defendant moves for an order dismissing the accusatory instrument as facially insufficient (see CPL §100.40; §170.30; see also Bery v. City of New York, 97 F3d 689 [2d Cir 1996]). The People oppose the motion in a response filed on April 12, 2010.

This court makes the following finding of fact and conclusions of law:

The New York Vendors Law which is contained in the New York Administrative Code §§20-452 et. seq., prohibits the retail sale of non-food goods and other services on public streets without first obtaining a license, with the exception of the sale of written materials. (See Admin. Code §20-453). However, the First Amendment to our Constitution protects more than just written or spoken words as mediums of expression, but also includes "pictures, films, paintings, drawings [] engravings" (see Kaplan v California, 413 US 115, 119 [1973]) and sculptures (see [*2]Mastrovincenzo v City of New York, 435 F3d 78, 83 [2d Cir. 2006]). Also, the New York Constitution is even "more protective of free expression than the First Amendment" (see People v Balmuth, 178 Misc 2d 958, 969 [Crim Ct, NY County 1994]) and that Administrative Code §20-453 has been broadly construed to permit other forms of expression such as visual artwork (see Balmuth 178 Misc 2d at 964).

In this case, the defense counsel provided sufficient support to substantiate that the items offered for sale by the defendant were visual art and thus protected by the First Amendment. P.O. Jerome Foy's affidavit alleges that he seized "10 decorative rocks" being sold by the defendant, and although the People in their response state that the defendant was selling "aesthetically pleasing" rocks that did not "contain expressive elements," they nevertheless could not rebut the defense counsel's claims that the rocks were visual art handmade by the defendant.

In cases such as this, it is up to the courts to determine what constitutes "expression" within the scope of the First Amendment (see Bery 97 F3d at 696). In order to determine whether a sale of goods is entitled to First Amendment protection: (1) the court should ask whether the items for sale constitutes paintings, photographs, prints and sculptures, which would entitle the vendor to presumptive First Amendment protection and would trigger an automatic judicial review (see Mastrovincenzo, 435 F3d at 95); and (2) if the items for sale do not fit into the four previously mentioned categories, the court should treat them "as potentially expressive" and determine whether they also have a common non-expressive purpose or utility and "whether this non-expressive purpose is dominant or not"^[FN1] (see People v. Chen Lee, 19 Misc 3d 791, 794—95 [Crim Ct, NY County 2008], citing Mastrovincenzo 435 F3d at 95).

The People rely on Al-Amir v City of New York, 979 F Supp 168 [E.D.NY 1997]. In Al-Amir where the defendants claimed First Amendment protection when they were offering "perfume oils and incense in exchange for donations'" while trying to convey messages about Islam, (id. at 173) the court held that defendants could not rely on Bery because "vials of perfume oil and sticks of incense lack an inherently communicative element" (id; see also People v Saul, 3 Misc 3d 260 [Crim Ct NY County 2004] (stating that decks of playing cards with pictures of military and political figures are not art); see also ISKON v Kennedy, 61 F3d 949, 961 [D.C. Cir. 1994] (holding that although Krishna beads may be used for meditation, they are not in and of themselves communicative)). The People further attempt to bolster their assertion by citing Bery to state that the rocks sold by the defendant do not convey any emotions or ideas, (Bery 97 F3d at 695) but rather that they are "simply rocks."

However, when making its decision in Bery, the court specifically averred that "[v]isual art is wide ranging in its depiction of ideas, concepts and emotions a primitive but effective way of communicating ideas" (Bery 97 F3d at 695) and that it is veritably a "shortcut from mind to mind" [*3](id., citing W. Va. Bd. of Educ. V Barnette, 319 US 624, 632 [1943]). Here too, the "decorative rocks" present an idea, a concept, and an emotion. Neither the United States Supreme Court nor the Courts of New York have required visual art to be "complex" in order to be protected.

Furthermore, in 2008 in People v Chen Lee, where the defendant was apprehended for selling coasters bearing photographs (not taken by the defendant) of New York City landmarks and dead celebrities, the court stated that the coasters appeared to be "display items not readily suitable for use as coasters, or for any other practical commonplace purpose" and held that their purpose was "exclusively expressive, and, as such, they warrant[ed] protection as expressive art." (Lee 19 Misc 3d at 796).

Therefore, in applying the standards stipulated by Bery and Lee to the decorative rocks sold by the defendant, it can be concluded that unlike the oils and incense which do not convey a message and whose commonplace utility dominates over their expressive tendencies, the handmade decorative rocks do not possess any "practical commonplace purpose" but rather are purchased for their aesthetic qualities.

Therefore, the defendant is protected by the First Amendment and by New York Constitution.

Accordingly, defendant's motion is granted and the accusatory instrument is dismissed.

This opinion shall constitute the Decision and Order of the court.

Dated: April 23, 2010