decided: December 12, 1968.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
MAE HARTMAN, APPELLANT
Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating, Breitel and Jasen concur.
Appeal, by permission of an Associate Judge of the Court of Appeals, from a judgment of the Appellate Term of the Supreme Court in the Second Judicial Department, entered May 17, 1968, affirming a judgment of the Criminal Court of the City of New York (George J. Balbach, P. J., Milton Mollen and Thomas Fitzpatrick, JJ., at time of conviction; Abraham M. Roth, P. J., Joan O'Dwyer O'Neill and Thomas G. Weaver, JJ., at time of sentence), rendered in Queens County, which convicted defendant of violating section 484-h of the former Penal Law (exposing minors to harmful materials). The complaint charged that on February 11, 1966 defendant sold a magazine, entitled "French Follies" and containing pictures of females in various states of undress and nudity, to a 13-year-old boy. Memorandum. The judgment should be affirmed. The statute (former Penal Law, § 484-h) deals with the knowing sale of obscene material to minors and defines "knowingly" as having "reason to know" the character and content of material susceptible of examination by defendant (subd. 1, par. [g], cl. [i]). The lurid cover of the magazine "French Follies", the notation "Adults Only", and the price of $1.50 would give ground to find defendant had reason to know the "character" of the magazine sold to a 13-year-old boy. Although defendant testified the magazine was "rolled up" and in the boy's hand when she sold it and she did not look at it, there is proof by the boy which could be credited that defendant looked at the book and also "looked at the price" when she sold it. Defendant's husband owns the store and has been in business for seven years. She works there regularly. The constitutionality of the statute has been upheld (Bookcase, Inc. v. Broderick, 18 N.Y.2d 71; Ginsberg v. New York, 390 U.S. 629).
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