The defendant was convicted of “unlicensed general vending” for selling t-shirts in New York City without a vendor’s license. In his defense the defendant argued that the vending of t-shirts with artistic images on them was constitutionally protected expression. The Court of Appeals affirmed the conviction and the determination below that the purpose of the sale was primarily utilitarian as opposed to expressive.  Judge Smith dissented because the t-shirts had been destroyed and the Court could not determine their expressive nature.  In describing the appropriate analysis as explained in a Second Circuit case, the Court of Appeals wrote:

…[T]he Second Circuit found that the relevant inquiry is whether the vendor is “genuinely and primarily engaged in artistic self-expression or whether the sale of such goods is instead a chiefly commercial exercise” … . The Court recognized that certain items, including apparel, could simultaneously contain potentially expressive and non-expressive components and, in that situation, a reviewing court must determine which purpose — expression or utility — is dominant… .  People v Lam, 95, CtApp, 6-11-13