New York Penal Law 245.00 - Interpretation

In People v. McNamara (78 NY2d 626, 585 NE2d 788, 578 NYS2d 476 [1991]), the Court of Appeals analyzed the phrase, "a public place," when not otherwise defined in a particular statute. In analyzing the public lewdness statute, Penal Law 245.00, McNamara declined to apply the definition of "public place" which appears at Penal Law 240.00 (1), pointing out that the definition is expressly limited to article 240 offenses. Penal Law 245.00 reads, in relevant part: "A person is guilty of public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act . . . in a public place." Thus, Penal Law 240.00 (1) applies to offenses against public order, but not to offenses against public sensibilities which appear in article 245 (id. at 630). The McNamara Court concluded that, by failing to include, by reference, the definition of a "public place" which appears in article 240, the legislature expressed an intent not to make the same broad definition applicable to article 245 offenses (id. at 633). Instead, McNamara concluded that the interior of a car parked on a public street could be "a public place" but only "where the objective circumstances establish that lewd acts committed there can, and likely would, be seen by the casual passerby" (id. at 633-634). Accordingly, the Court affirmed the dismissal since the sworn allegations failed to establish such objective circumstances.