The defendant is charged with unlicensed general vending in violation of AC § 20-453.

The defendant moves in an omnibus motion for: (1) dismissal of the accusatory instrument for facial insufficiency; (2) discovery; (3) a bill of particulars; (4) preclusion of convictions and prior bad acts; (5) suppression of physical evidence;(6) suppression of statement evidence; and (7) reservation of the right to make additional motions. The People filed and served a voluntary disclosure form and otherwise oppose the motion.

On January 14, 2011, the Court ordered Mapp, Huntley and Dunaway hearings, and reserved decision on the balance of the motion.

For the reasons that follow, that branch of the motion seeking dismissal is denied.

The accusatory instrument alleges that on October 2, 2010, in front of 561 Broadway, New York, New York, the defendant displayed and offered for sale 5 t-shirts and could not produce a license issued by the Department of Consumer Affairs, in violation of AC

§ 20-453. [*2]

While the t-shirts are not described any further in the accusatory instrument, the defendant contends that the t-shirts were personally designed by himself and his brother. He argues that the t-shirts are expressive artwork, and despite its non-expressive purpose, under Bery v. New York (97 F3d 689 [2d Cir 1996]), are entitled to full First Amendment protection. The Court rejects this argument.

Because of the First Amendment, "Congress shall make no law abridging the freedom of speech " (US Const. Amend 1). "The First Amendment's fundamental purpose ... is to protect all forms of peaceful expression in all of its myriad manifestations (Bery, supra at 694, quoting Abood v. Detroit Board of Education, 431 US 209 [1977]). Protected expression is not just written or spoken; protected expression includes pictures, films, paintings, drawings, engravings, entertainment, film, theater, and music, to name a few (id.; see also Kaplan v. California, 413 US 115 [1973]). Nor is the First Amendment's protections confined to a narrow particularized message (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 US 557, 569 [1995]).

"Courts must determine what constitutes expression within the ambit of the First Amendment and what does not. This surely will prove difficult at times, but that difficulty does not warrant placing all visual expression in limbo outside the reach of the First Amendment's protective arm" (Bery, supra at 696). In Bery, the Second Circuit held that visual artists were entitled to an injunction against enforcement of AC § 20-453, on the basis that the expressive character of their artwork warranted First Amendment protection.

This case is not factually similar to Bery. Although the defendant claims that he is "genuinely engaged in artistic expression" and that he personally designs the t-shirts, he has not otherwise provided any description of the shirts, or his sale thereof, which would indicate that they have some expressive element, i.e. political images, artistic depictions, etc, and would thereby trigger First Amendment protection. Even though the defendant requests an in camera review of the items seized, he has not demonstrated that a hearing is warranted on this issue (cf. People v. Chen Lee, 19 Misc 3d 791 [2008]), nor is such a hearing required (see People v. Ndiaye, 26 Misc 3d 212, 214 [2009]). Simply designing a t-shirt does not indicate that the t-shirt or its sale has an expressive purpose or is otherwise a function of the defendant's own artistic endeavors (see People v. Saul, 3 Misc 3d 260 [2004]). Absent such factual allegations, the Court declines to review the t-shirts in camera.

Because the defendant has failed to establish that the subject t-shirts, or their sale, has an expressive purpose, the court does not need to determine whether the t-shirt's purported expressive purpose is dominant. The defendant's arguments to that effect are therefore rejected.

The defendant also argues that the information is deficient because it fails to allege that the location where the defendant sold the t-shirts was a public place. This argument also fails. A public sidewalk in front of 561 Broadway is indisputably a public space within the meaning of AC § 20-453 (see AC § 20-452 [d]).

Accordingly, that branch of the defendant's motion seeking dismissal for facial insufficiency is denied.

Sandoval

The Sandoval hearing is referred to the trial court. The People shall disclose any prior bad act evidence which they will seek to introduce at trial for purposes of impeaching defendant's [*3]credibility in accordance with the time frame set forth in CPL § 240.43.

Reservation of Rights

The defendant's motion to reserve the right to make further motions is granted to the extent permitted by CPL § 255.30(3).

Conclusion

In accordance herewith, it is hereby:

ORDERED that defendant's motion to dismiss for facial insufficiency is denied; and it is further

ORDERED that the Sandoval hearing is referred to the trial court; and it is further

ORDERED that the defendant's motion to reserve the right to make further motions is granted to the extent permitted by CPL § 255.30 (3).

Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied.

The foregoing is the decision and order of the Court.

Dated: February 28, 2011

So Ordered:

New York, New York

______________________

Hon. Lynn R. Kotler, J.C.C.