Loitering Arrest of Panhandler Is Dismissed as Unlawful

Copyright © The New York Times - May 31, 2007


NEW ROCHELLE, N.Y., May 30 - A homeless panhandler arrested for loitering after asking a police officer for a dollar won a legal battle on Wednesday when a City Court judge dismissed the charge, finding the arrest unconstitutional.

In doing so, the judge also threw out a misdemeanor drug possession charge against the man, Eric Hoffstead, since it resulted from a search after the unlawful loitering arrest.

With his hands cuffed behind his back, Mr. Hoffstead turned his head upward and smiled as the decision was announced by Judge Preston S. Scher, who presided at the hearing. The decision was signed by Judge Gail B. Rice.

The four-paragraph decree echoed a 1992 ruling by a federal District Court that the state loitering law violated the First Amendment protection of free speech.

Mr. Hoffstead, 36, had urged his court-appointed lawyer, Carl D. Birman, to challenge his arrest after reading a newspaper article about the law. "This is a great victory for freedom of speech," Mr. Birman said after the hearing. A spokesman for the Westchester County district attorney, Janet DiFiore, said she did not plan to appeal the decision. Mr. Hoffstead, who has been jailed 20 times in Westchester County on misdemeanor charges, remains in custody on a trespassing charge stemming from an arrest on May 22. He is due in court on Friday.

The state penal code holds that a person is loitering if he "remains or wanders about in a public place for the purpose of begging."

The 1992 federal ruling outlawing that provision came in a case that originated in New York City and applied specifically to enforcement in the city. The provision remained in effect for the rest of the state, and nearly 2,400 people statewide have been charged under the statute in the past decade.

Legal experts say the 1992 ruling is not binding on state courts but could be a strong precedent when judges hear a constitutional challenge.

The New York Police Department issued 791 summonses from June 23, 2005, when a federal judge in Manhattan ordered it to "cease enforcement" of the provision, to Feb. 21, 2007. That enforcement is the subject of a contempt-of-court motion filed by Matthew D. Brinckerhoff.