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  5. 58 N.Y.2d 936 (1983)
 

PEOPLE v. UPLINGER

58 N.Y.2d 936 (1983)

The People of the State of New York, Respondent, v. Robert Uplinger, Appellant. The People of the State of New York, Respondent, v. Susan Butler, Appellant.

Court of Appeals of the State of New York.

Decided February 23, 1983.

Attorney(s) appearing for the Case

William H. Gardner for Robert Uplinger, appellant.

Joseph A. Shifflett, Rose H. Sconiers and Joseph B. Mistrett for Susan Butler, appellant.

Richard J. Arcara, District Attorney (John J. De Franks and Louis A. Haremski of counsel), for respondent.

Michael J. Lavery for Lambda Legal Defense and Education Fund, amicus curiae.

Sarah Wunsch and Rhonda Copelon for Center for Constitutional Rights, amicus curiae.

Steven R. Shapiro for New York Civil Liberties Union, amicus curiae.

Chief Judge COOKE and Judges JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur in memorandum; Judge JASEN dissents and votes to affirm in an opinion.

MEMORANDUM.

The order of the County Court should be reversed and in each case the information should be dismissed.

The statute challenged on these appeals (Penal Law, § 240.35, subd 3), which prohibits loitering "in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature" must be viewed as a

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