Zwickler v. Koota

DISSENTING OPINION

ROSLING, District Judge.

This dissent is only from so much of the majority’s holding that the basic, but residual, question of constitutionality of Penal Law § 781-b should be passed back to the state courts for adjudication while we abstain. The question of constitutionality, however, is necessarily reached if the dissent correctly holds that we must not abstain. That the provision is unconstitutional for overbreadth the Attorney Genera] in his brief substantially acknowledges by citing the legislative history of the most recent (1962) amendment of the provision as basis for…