The defendant is charged with being a vagrant, in violation of the provisions of section 887 (subd. 4, cl. [c]) of the Code of Criminal Procedure of the State of New York.
The testimony establishes that the defendant, in his office, known as the Lane Employment Agency, located at 115 West
In order to come within the purview of section 887 (subd. 4, cl. [e]) of the Code of Criminal Procedure, the defendant must, (1) loiter, (2) in or near any thoroughfare or public or private place, and (3) for the purpose of inducing, enticing or procuring another to commit lewdness, fornication, unlawful sexual intercourse, or any other indecent act.
To properly define loitering, in its legal sense, the court is bound by reasonable usage, the application of the word to specific facts in the adjudicated cases, the language of the statute, and all the facts and circumstances of each specific case.
Webster’s New International Dictionary (2d ed.) defines “ linger ” as synonymous with “ loiter ”, and defines “ linger ” as “to remain or wait long; to be slow in parting or quitting anything ’ ’.
Murray’s, A New English Dictionary on Historical Principles, (Vol. VI) “ Founded mainly on the materials collected by the Philological Society,” Oxford, England —1908, defines loitering as ‘ ‘ that loiters or idles; in early use, that leads a vagabond life. ’ ’
Webster’s New Collegiate Dictionary, 2d ed., 1959, gives as synonymous with “loiter”, the word “linger”, and with ‘ ‘ linger ’ ’, the word ‘ ‘ stay ’ ’, and, as synonyms for the word “stay”, the words: to remain, to wait, to abide, to tarry, to linger. Certainly, the record establishes that, at least on three separate occasions within one month, to wit: June 17,1960, July 11, 1960, and July 14, 1960, the defendant remained, waited, abided, tarried and lingered at his employment office with the three People’s witnesses, Fernandez, Kauff and Cirile, respectively.
In People v. Choremi (301 N. Y. 417, 420) the Court of Appeals said: 11 Even assuming that one may ‘ loiter ’ — as that word is used in the criminal statutes under consideration * * *■— in one’s own home, the record is devoid of any proof of such act.” In other words, the majority opinion is based upon a deficiency of proof and is not a holding that, as matter of law, one may not loiter in one’s own home. Cannot one then loiter in one’s office? The defendant’s office was an employment agency and, consequently, was necessarily open to and available to the general public seeking employment. In the instant case, the inducing, enticing or procuring did not take place in a private residence to which no one but the lawful occupant could have the right of access, nor by telephone, but in an office to which the general public was invited and authorized by law to come, and the inducing, enticing or procuring was done by the defendant in person, face to face with the witnesses herein.
In People v. Gould, (306 N. Y. 352) the Court of Appeals held that the prosecution failed to establish that the defendant had either prostitutes or customers available. He was merely attempting to place under his management a woman for whom, in the business of prostitution, he would, in futuro, act as a pimp or procurer. That case differs from the instant case in that (1), it was a prosecution under clause (b), not clause (c) of subdivision 4 of section 887 of the Code of Criminal Procedure, and (2), it was a holding that the evidence was insufficient for a conviction as a pimp or procurer, as a matter of fact.
On the three separate occasions in this record, the only employment which the defendant offered these girls were jobs for which they would have to submit to unlawful sexual intercourse, or other lewd acts, etc. with their employers. There is no testimony anywhere in the record of this defendant ever having offered or having obtained legitimate employment for anyone. Therefore, the court must conclude that the defendant’s employment agency facade was merely a cloak for his business of inducing, enticing or procuring girls for unlawful sexual intercourse or other indecent acts.
I see no legal distinction between the public character of the bus depot in Buffalo where anyone may go to board a bus and the defendant’s employment agency in New York City, where anyone may go to look for a job. Besides which, the statute expressly includes any private place within its provisions.
In People v. Choremi (301 N. Y. 417, 421, supra) Judge Conway, in his dissenting opinion, states: ‘ ‘ This section is part of a comprehensive series of enactments passed by the Legislature in an effort to stamp out the crime of prostitution, with all its attendant evils, by controlling every facet of the illegal enterprise * * *. The law’s primary concern is not with punishing the females involved, as is evidenced by the comparatively light punishment provided in section 887 of the code compared to the more severe penalties to which others who make money out of the prostitution of women are subject.”
Certainly the Legislature did not intend to omit from the applicability of section 887 (subd. 4, cl. [c]) of the Code of Criminal Procedure any one who, behind the mask of a legal-looking business, lures innocent young girls into a respectable-appearing office and there induces, entices or procures them for unlawful sexual intercourse or any other indecent act. In fact, I am certain that the Legislature intended to declare illegal all
Accordingly, the defendant’s motions made at the close of the case are denied, and the defendant is found guilty as charged.