Justice Court of the Village of Red Hook, Dutchess County, November 22, 2021

Thomas Angell, Public Defender, Poughkeepsie (Seth Gallagher of counsel), for defendant.

Christopher Montalto, Special Prosecutor, Poughkeepsie, for plaintiff.

On July 7, 2021, defendant was issued an appearance ticket by the Red Hook Police for violation of Code of the Village of Red Hook § 130-4, alleging violation of the noise ordinance.

During the pendency of this proceeding, defendant was represented by Assistant Public Defender Seth Gallagher, Esq. The People were represented by Special Prosecutor Christopher Montalto, Esq.

On July 21, 2021, in open court, defendant challenged the constitutionality of the noise ordinance. Defendant notified the proper party, the Mayor of the Village of Red Hook, of the constitutional challenge, and she obtained the services of Mr. Montalto by designation of the District Attorney of Dutchess County.^[FN*]

Defendant filed a written motion on August 11, 2021, asking that the charge herein be dismissed as the village ordinance involved is unconstitutionally vague.

The People filed their opposition on October 20, 2021. A letter was filed with the court by Charles Rubin, amicus curiae, pro se.

Defendant filed a reply on November 17, 2021. As neither side asked for oral argument, the court marked the motion fully submitted on November 17, 2021.

The Village of Red Hook's noise ordinance reads as follows:

"§ 130-4 Radio and other mechanical devices.

"It shall be unlawful for any person to operate in or upon any vehicle in any building or upon any premises or in any street or other public place any voice amplifying device, [*2]radio device or mechanical musical instrument or device of any kind whereby the sound therefrom is cast directly on the public streets and placed where such device is maintained and operated for advertising purposes or for the{**73 Misc 3d at 1061} purpose of attracting the attention of the passing public, or which is so placed and operated that the sounds coming therefrom can be heard to the annoyance or inconvenience of travelers upon any street or public place or of persons in neighboring premises." (Emphasis added.)

There is no bright-line standard in this ordinance, such as a decibel level which defendant should not exceed, which would put defendant on notice as to when he would cross the line into illegality. Instead, it is left to the subjective standard of what annoys or inconveniences a neighbor.

The allegation here is that defendant played his radio so loudly that it could be heard by, and did annoy, his neighbor.

Defendant relies on People v Bright (71 NY2d 376, 382 [1988]) for the proposition that a statute, such as the one now under consideration, must give "sufficient notice of what conduct is prohibited." This ordinance fails to do so as it does not have a measurable decibel standard that would allow defendant to guide his conduct. Instead the "standard" is the perception of the putative victim. If the neighbor is hard of hearing, or is a music lover, or just of an easygoing temperament, no charges may be preferred. Yet, if the neighbor is more easily annoyed, criminal liability may ensue. We cannot put a defendant in the shadow of the penitentiary on the shifting sands of such a vague standard.

This ordinance is the equivalent of the Village changing the traffic signs from 30 miles per hour to ones that read "Don't Drive Too Fast." One can imagine the arguments between the officer and the motorist. ("You were driving too fast." "No I wasn't." "Yes you were.") Lack of standards in law leads to the danger of arbitrary enforcement, which is itself violative of the holding of People v Bright and its progeny.

The Code of the Town of Red Hook noise ordinance is instructive here:

"§ 92-7 Maximum permissible continuous sound levels.

"It shall be prima facie evidence that an activity has created unreasonable noise if it measures in excess of the standards set forth below for continuous sound levels. An activity that does not measure in excess of the standards may still be deemed to{**73 Misc 3d at 1062} have created unreasonable noise if it violates any of the prohibitions set forth in § 92-6 or 92-8 of this chapter.

"A. No person shall make, cause, allow, or permit the operation of any source of sound on a particular category of property or any public space or right-of-way in such a manner as to create a sound level that exceeds the particular continuous sound level limits set forth in Table I when measured at or within the real property line of the receiving property, except as provided in Subsection B.

"B. When measuring noise within a dwelling unit of a multi-dwelling-unit building, all [*3]exterior doors and windows shall be closed and the measurements shall be taken in the center of the room.

"TABLE I

"Sound Limits

	"Residential Area	Commercial Area
"7:00 a.m. to 10:00 p.m.	65 dBA	70 dBA
"10:00 p.m. to 7:00 a.m.	50 dBA	60 dBA"

Here we have scientifically measurable standards that give defendant clear guidance as to when he would cross into illegality.

Inasmuch as the village noise ordinance does not give the constitutionally mandated fair notice of what is a violation and, thereby, invites arbitrary and discriminatory enforcement, it is the judgment of the court that said village ordinance is unconstitutionally vague, and the charges against the defendant are dismissed.