People v. On Sight Mobile Opticians

APPELLATE TERM
SECOND DEPARTMENT
Criminal Practice

, New York Law Journal

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Per Curiam

Appellant company appealed from five judgments that convicted it of placing a prohibited sign on public property. Defendant was charged with placing a sign advertising its business on public property at five locations in the Town of Brookhaven, violating Town Code §57A-11(B) which prohibited commercial advertising on public property. Defendant's counsel argued §57A was unconstitutional as it impermissibly favoured commercial speech over non-commercial speech. The unanimous panel agreed stating §57A, of which defendant was convicted of violating, when considered alone represented a constitutional exercise of the Town's zoning authority; considered as a whole, it unconstitutionally favored commercial over non-commercial speech. It noted §57A allowed commercial advertising in every zoning district aside from public lands and roads, and barred non-commercial speech in most contexts in which commercial speech was permitted. The panel also concluded that the unconstitutional portions could not be severed from the constitutional portions. Thus, as the panel found §57A unconstitutional, the judgments convicting defendant of violating §57A-11(B) were reversed and the accusatory instrument dismissed.

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