Judge Nervo
http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=117287
DEFENDANT, charged with unlicensed general vending, moved to dismiss the accusatory instrument as facially insufficient arguing the conduct charged was constitutionally protected. An officer observed defendant displaying and selling costume jewelry, and a vendor’s license was neither displayed nor produced. The court noted a person vending jewelry may be entitled to First Amendment protection that applies to the sale of art, but the sale of jewelry was not presumptively entitled to such protection. It ruled as a jewelry vendor was not presumptively entitled to operate without a license, the question of whether objects defendant was selling served a “predominantly expressive purpose” or were mere commercial goods could not be determined on a motion to dismiss for facial insufficiency, as such was an evidentiary issue. The court also rejected the argument that defendant was an artist, noting the list of materials used in the jewelry did not provide a basis to determine if it served a predominantly expressive purpose. The fact that defendant may be an artist was of no moment, the court opined, as such status did not presumptively make products artistic works. Thus, the motion was denied.
