Temporarily Assigned, concurring in part and voting to dismiss the appeal. I agree with so much of the court’s opinion as expresses the view that plaintiff’s are not aggrieved by the determination of the Appellate Division and that the appeal might well he dismissed as not raising a substantial constitutional issue in the light of that determination. I would accordingly dismiss the appeal on the court’s motion rather than affirm the Appellate Division decision as I cannot in conscience agree with that tribunal’s construction of the ordinance.
The principle of judicial preference for that one of two possible constructions of an ordinance or statute which will render it constitutional requires that the legislation be “reasonably susceptible to such interpretation.” State v. Profaci, 56 N. J. 346, 350 (1970). I cannot find the interpretation by the Appellate Division of Section 2(b) and 2(d) of the ordinance, or of the effect of Section 3, as within a reasonable reading of those provisions in the light of the text of the ordinance as a whole. To read into both 2(b) and 2(d), as the Appellate Division did, the qualification that the forbidden conduct must be such as to threaten physically “the peace and order of the public” is to ignore that the ordinance separately, in Section 2(a), already forbids loitering which would “create or cause to be created a danger of a breach of the peace” and that therefore the other mentioned paragraphs of Section 2 must have meant to proscribe conduct which need not create a danger of breach of the peace. That being so, and those paragraphs extending, inter alia, to conduct which is an “annoyance” to, or “calculated to annoy or disturb,” others, they fall afoul of the structures against facial over-breadth in relation to freedom of expression, as applied to substantially similar ordinance language, recently reiterated by the United States Supreme Court in Coates v. Cincinnati, 402 U. S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971) and *469Gooding v. Wilson, 405 U. S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972); see also Rosenfeld v. New Jersey, 408 U. S. 901, 92 S. Ct. 2479, 33 L. Ed. 2d 321 (June 26, 1972); State v. Rosenfeld, 120 N. J. Super. 458 (App. Div. 1972).
There was, further, no reasonable basis for the Appellate Division to hold that there could be no consummated offense under any paragraph of Section 2 unless the offender also refused to move on at the request of an officer, as required by Section 3. The ordinance cannot in my judgment be reasonably read that way. Section 7 says the violation of any provision of the ordinance is punishable as an offense. Thus conduct violative of any provision of Section 2 is a completed offense even if there is no officer present to require the offender to move on. Violation of Section 3 is in terms an offense dependent on violation also of one of the provisions of Section 2, but not vice-versa. In this regard, however, it is clear that potential offenders benefit by the construction arrived at in the Appellate Division, and plaintiffs are therefore not aggrieved thereby.
I agree with the conclusion below as to the validity of Section 2(a) and 2(c) (obstructing free passage).
In sum, I would, had I sat below, have felt constrained to hold Sections 2(b) and 2(d) facially invalid but would have sustained as separable Sections 2(a) and 2(c), holding violation of either of those paragraphs punishable independently of Section 3. I deem the latter section entirely unobjectionable as it requires a determination by the police officer that the offender’s presence threatens the preservation of the public peace and safety.
Since plaintiffs cannot seriously contend that there is anything unconstitutional about an ordinance that (as construed) simply prohibits loitering in a manner creative of a danger of a breach of the peace or such as would obstruct the free passage of pedestrians or vehicles, and not even that unless there is also disobedience of a police order to move on, as the ordinance was in effect construed below, they are not *470constitutionally aggrieved by the determination of the Appellate Division, and the appeal should be dismissed.
Conford, P. J. A. D., Temporarily Assigned, concurs in part and votes to dismiss the appeal.
For affirmance — Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain and Judge Sullivan — 6.
For dismissal of the appeal — -Judge Conford — 1.
For reversal — None.