This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 171 

The People &c.,

 Respondent,

 v.

Harvert Stephens, Also Known as

Havert Stephens,

 Appellant.

Kristen McDermott, for appellant.

James P. Maxwell, for respondent.

John A. Sickinger, for amicus curiae City of Syracuse.

GARCIA, J.:

This case calls upon us to determine the

constitutionality of Syracuse Noise Control Ordinance ("Syracuse

Noise Ordinance") section 40-16 (b) (sound reproduction), which

prohibits the creation of "unnecessary noise" emanating beyond 50

feet from a motor vehicle operated on a public highway. 

Specifically, we are asked whether this section is

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unconstitutional pursuant to our decision in People v New York

Trap Rock Corp. (57 NY2d 371 [1982]). For the reasons stated

below, we conclude that the statute does not "offend the

constitutional void-for-vagueness doctrine of due process" (id.

at 374)

Defendant was charged with criminal possession of a

controlled substance in the third degree, criminal possession of

a controlled substance in the fifth degree and with sound

reproduction in violation of the Syracuse City Ordinance section

40-16 (b). Defendant's vehicle was stopped by police officers

who believed his car stereo was operating at a volume that could

be heard more than 50 feet away in violation of section 40-16

(b). During that stop, the arresting officers discovered

defendant was in possession of crack cocaine, some of which was

in plain view. 

Syracuse Noise Ordinance section 40-4 sets forth the

"general prohibition" against "unnecessary noise," stating: "No

person shall make, continue or cause or permit to be made any

unnecessary noise." "Unnecessary noise" is defined in section

40-3 (u) as "any excessive or unusually loud sound or any sound

which either annoys, disturbs, injures or endangers the comfort,

repose, health, peace or safety of a reasonable person of normal

sensibilities, or which causes injury to animal life or damage to

property or business" [emphasis added]. This section includes

eleven standards "to be considered in determining whether

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unnecessary noise exists in a given situation" (id. § 40-3 [u]). 

The Syracuse Noise Ordinance also contains 14 sections listing

acts that constitute prima facie evidence of a violation of the

ordinance (id. § 40-4). Here, the indictment specifically

charged, and defendant was convicted of, one of these 14

enumerated acts:

"No person shall operate, play or permit

the operation or playing of any radio,

television, phonograph, drum, musical

instrument, sound amplifier or similar

device which produces, reproduces or

amplifies sound: . . . (b) In such a

manner as to create unnecessary noise at

fifty (50) feet from such device, when

operated in or on a motor vehicle on a

public highway" (id. § 40-16 [b]). 

Defendant moved to suppress the crack cocaine

discovered during the traffic stop. At the suppression hearing,

two police officers testified that the music could be heard from

at least 100 feet away from defendant's vehicle. At the

conclusion of the hearing, defendant moved to dismiss the count

charging a violation of section 40-16 (b), arguing that the

Syracuse Noise Ordinance was unconstitutional under the

void-for-vagueness doctrine. He further argued that suppression

of the drugs seized as a result of the stop was required. 

Supreme Court denied both the dismissal and suppression

motions. Although the court determined the Syracuse Noise

Ordinance was arguably unconstitutional, Supreme Court concluded

"that the Appellate Division should make the determination as to

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whether or not the ordinance passes constitutional muster." 

Supreme Court further determined "there was sufficient proof of

probable cause to believe the defendant violated Section 40-16

(b) of the Syracuse Noise Ordinance, which prohibits

dissemination of 'unnecessary noise' beyond 50 feet of an

automobile, because there was testimony on this point that the

court has found credible." 

At the subsequent bench trial, which was conducted on

stipulated proof, defendant was convicted as charged. 

On appeal, the Appellate Division unanimously affirmed,

holding that the Syracuse Noise Ordinance was constitutional (128

AD3d 1497 [4th Dept 2015]). The Appellate Division rejected

defendant's argument that the ordinance was unconstitutionally

vague, reasoning that while a similar local noise ordinance was

held to be void for vagueness in Trap Rock, the Syracuse Noise

Ordinance at issue "defines 'unnecessary noise' with reference to

an objective standard of reasonableness rather than a subjective

standard, and thus it is not unconstitutionally vague on that

ground" (id. at 1498, quoting Syracuse Noise Ordinance § 40-3

[u]). The court further found that section 40-16 (b) was not

unconstitutionally vague because it was "tailored to a specific

context -- the creation of 'unnecessary noise' beyond 50 feet of

a motor vehicle on a public highway" (id. at 1498-1499). A Judge

of this Court granted leave to appeal, and we now affirm. 

Defendant has challenged the constitutionality of the

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Syracuse Noise Ordinance both on its face and as applied.

However, when a "defendant makes an as-applied challenge and the

court repudiates it," as we do here, "the facial validity of the

statute is confirmed" because the court "necessarily concluded

that there is at least one person -- the defendant -- to whom the

statute may be applied constitutionally" (People v Stuart, 100

NY2d 412, 422-423 [2003]).

Municipal ordinances are afforded an "exceedingly

strong presumption of constitutionality" (Lighthouse Shores, Inc.

v Town of Islip, 41 NY2d 7, 11 [1976]; see also Brady v State, 80

NY2d 596, 602 [1992]) and should "be construed so as to avoid

constitutional issues if such a construction is fairly possible"

(FGL & L Prop. Corp. v City of Rye, 66 NY2d 111, 120 [1985]). We

have further recognized that "noise regulation poses special

problems of draftsmanship and enforcement," as the "nature of

sound makes resort to broadly stated definitions and prohibitions

not only common but difficult to avoid" (Trap Rock, 57 NY2d at

379). 

With these general principles in mind, we analyze this

vagueness challenge using a two-part test (Stuart, 100 NY2d at

420; People v Nelson, 69 NY2d 302, 307 [1987]; People v Smith, 44

NY2d 613, 618 [1978]). First, we must determine "whether the

statute in question is sufficiently definite to give a person of

ordinary intelligence fair notice that his contemplated conduct

is forbidden" (Stuart, 100 NY2d at 420, citing Nelson, 69 NY2d at

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307 [internal quotation marks omitted]; see also Smith, 44 NY2d

at 618, quoting United States v Harriss, 347 US 612, 617 [1954]). 

Second, we must determine "whether the enactment provides

officials with clear standards for enforcement" so as to avoid

"resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application" (Stuart, 100

NY2d at 420-421, quoting Grayned v City of Rockford, 408 US 104,

108-109 [1972]; Nelson, 69 NY2d at 307). Accordingly, a statute

is "unconstitutionally vague under the Due Process Clauses of the

Federal and State Constitutions [where] it fails to give fair

notice to the ordinary citizen that the prohibited conduct is

illegal, [and] it lacks minimal legislative guidelines, thereby

permitting arbitrary enforcement" (People v Bright, 71 NY2d 376,

379 [1988]). On the other hand, "[a] statute which employs terms

having an accepted meaning long recognized in law and life cannot

be said to be so vague and indefinite as to afford the defendant

insufficient notice of what is prohibited or inadequate

guidelines for adjudication, even though there may be an element

of degree in the definition as to which estimates might differ"

(People v Cruz, 48 NY2d 419, 428 [1979] [internal quotation marks

and citations omitted]). 

Contrary to defendant's claim, the Syracuse Noise

Ordinance challenged here does not suffer from the same

constitutional infirmities as the Poughkeepsie Noise Ordinance

(Unnecessary Noise Control Ordinance of the Town of Poughkeepsie,

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adopted July 13, 1977) challenged in Trap Rock. The Poughkeepsie

Noise Ordinance contained a general provision prohibiting a

person from making "any unnecessary noise," defined as "any

excessive or unusually loud sound or any sound which either

annoys, disturbs, injures or endangers the comfort, repose,

health peace or safety of a person" (Trap Rock, 57 NY2d at 375

[emphasis added]). That statute listed ten non-exclusive

standards to be considered in determining whether "unnecessary

noise" existed in a given situation (id. at 375-376). The

Poughkeepsie Noise Ordinance then listed 17 acts which would

violate the law if they created unnecessary noise; notably,

however, violation of any one of those 17 subdivisions would also

constitute a violation of the general provision against making

"any unnecessary noise" (id. at 376). The defendant in Trap Rock

was convicted of violating one of the specific subdivisions as

well as the general provision based upon the same conduct. 

In Trap Rock, we turned first to the specific

subdivision defendant had been found to violate -- the making of

unnecessary noise within 300 feet of the boundary line of a

residential district -- and noted that it was unreasonably

expanded by the phrase "without limiting the above language" (id.

at 380). In effect, the Trap Rock defendant was convicted of

violating that specific provision even though the commercial

loading activity at issue took place 2,400 feet from any

residential boundary (id.). We found "still more egregious" the

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fact that the identical conduct also resulted in conviction under

the blanket provision against making "any unnecessary noise" -- a

section "permeated with vagueness" (id.). We found that the

subjective definition of "unnecessary noise" in that provision --

"any excessive or unusually loud sound or any sound which . . .

annoys . . . a person" -- could result in convictions based

solely on the malice or animosity of a cantankerous neighbor

(id.). The ten specific standards that were articulated did not

save the statute, as the standards were themselves vague and

non-exclusive (id. at 381). As a result, we held that the

pervasive nature of the statute's catchall effect made the

ordinance a ready candidate for ad hoc enforcement and that,

accordingly, the Poughkeepsie Noise Ordinance was

unconstitutional (id.). 

The crucial difference here is that the Syracuse Noise

Ordinance defines "unnecessary noise" based on an objective

standard -- specifically, "a reasonable person of normal

sensibilities" (Syracuse Noise Ordinance § 40-3 [u]). As we

concluded in People v Bakolas (59 NY2d 51 [1983]), decided less

than a year after Trap Rock, the "term 'unreasonable noise' is

not incapable of definition. Rather, it describes a noise of a

type or volume that a reasonable person, under the circumstances,

would not tolerate" (id. at 53). The Bakolas Court distinguished

Trap Rock, finding that an objective standard prevents arbitrary

and discriminatory "enforcement according to the 'malice or

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animosity of a cantankerous neighbor' or the 'boiling point of a

particular person'" (Bakolas, 59 NY2d at 54, quoting Trap Rock,

57 NY2d at 380). 

Additionally, unlike the Poughkeepsie Noise Ordinance,

Syracuse Noise Ordinance section 40-16 (b) is "tailored to a

specific context" -- limiting the prohibition to creating

"unnecessary noise" by playing a radio or similar device that can

be heard at least 50 feet away when being operated in a motor

vehicle on a public highway. We recognized in Trap Rock that

"antinoise cases" have upheld noise regulations that apply within

limited contexts and convey "an accepted meaning" (Cruz, 48 NY2d

at 428) to such otherwise imprecise words as "loud" or

"excessive" (Trap Rock, 57 NY2d at 379, quoting People v Byron,

17 NY2d 64, 67 [1966]). For example, in People v Byron, we

upheld a motor vehicle statute that mandated that "[e]very motor

vehicle, operated or driven upon the highways of the state, shall

at all times be equipped with an adequate muffler . . . to

prevent any excessive or unusual noise . . ." (id. at 66). This

Court concluded "[w]hat is unusual noise in the operation of a

car has become common knowledge and anything in excess of that is

excessive or unusual and any ordinary motorist should have no

difficulty in ascertaining whether or not excessive or unusual

noise accompanied the operation of his vehicle" (id. at 67). We

agree with the Appellate Division's conclusion below that

"'[w]hat is usual noise in the operation of a car [radio or other

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sound production device] has become common knowledge . . . and

any ordinary motorist should have no difficulty in ascertaining'

whether the noise in question violates the applicable standard"

(128 AD3d at 1499, quoting Byron, 17 NY2d at 67). 

Accordingly, Syracuse Noise Ordinance section 40-16 (b)

is sufficiently definite to put a person on notice that playing

music which can be heard over 50 feet from such person's car on a

public road, in a manner that would annoy or disturb "a

reasonable person of normal sensibilities" is forbidden conduct

and the objective standard affords police sufficiently "clear

standards [for] enforcement" (Stuart, 100 NY2d at 420). 

Moreover, unlike the Poughkeepsie Noise Ordinance at issue in

Trap Rock, section 40-16 does not contain any "without limiting

the above language" clause that would make it possible to convict

defendant of violating section 40-16 (b) for creating unnecessary

noise that could be heard at distances less than 50 feet from his

vehicle.

For the reasons set forth above, we hold that the

Syracuse Noise Ordinance is constitutional.1 We have considered

defendant's remaining contentions on appeal and conclude they are

without merit. Accordingly, the Appellate Division order should

1 Our conclusion is in line with federal courts which have

considered the Syracuse Noise Ordinance and other similar laws

that incorporate an objective standard (see Marcavage v Syracuse

Police Dept., 515 Fed Appx 14 [2d Cir 2013]; Howard Opera House

Assocs. v Urban Outfitters, Inc., 322 F3d 125, 128 [2d Cir

2003]). 

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be affirmed. 

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Garcia. Chief Judge DiFiore

and Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided November 21, 2016

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