People v. Hardy , 77 Misc. 2d 1092 ( 1974 )

Memorandum. Judgment of conviction reversed on the law and facts, complaint dismissed, and fine remitted.

Defendant was charged ¡with violating Penal Law (§ 245.00) in that she was sunbathing in the nude on a public beach along with several other persons. Under the law nudity in itself is not prohibited and lewdness cannot be presumed from the mere fact of nudity. There must be a showing of lewd conduct from which the intention to act in a lewd manner can be drawn. Since no evidence was introduced establishing that defendant had intentionally exposed her private parts in a public place in a “lewd manner” or otherwise committed a “lewd act ’ ’, her guilt was not established beyond a reasonable doubt (People v. Gilbert, 72 Misc 2d 75; cf. People v. Price, 33 N Y 2d 831; Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N. Y., 3 N Y 2d 237, 242; People v. Ulman, 258 App. Div. 262).

Glickman, P. J. and Pittoni, J. concur; Parley, J., dissents and votes to affirm the conviction in a separate memorandum.