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CRIMINAL COURT OF THE CITY OF NEW YORK 1969.NY.40268 <>; 296 N.Y.S.2d 815; 58 Misc. 2d 905 January 24, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.EMILIO STABILE ET AL., DEFENDANTS Lipsitz, Green, Fahringer, Roll, Schuller & James (Herald Price Fahringer of counsel), for defendants. Frank S. Hogan, District Attorney (Kenneth Conboy of counsel), for plaintiff. William E. Ringel, J. Author: Ringel

William E. Ringel, J.

Author: Ringel

 The defendants, charged with a violation of the obscenity law in that they did knowingly sell various allegedly obscene magazines to undercover policemen (Penal Law, § 235.05), move to dismiss the complaints against them on the ground that the subject matter of each complaint is constitutionally protected under the First Amendment to the United States Constitution and is not obscene as a matter of law. Each defendant now before the court, 12 in all, although separately charged, has been joined by consent of the parties for the purposes of this motion.

The People concede that none of these cases involve sales to minors (People v. Tannenbaum, 18 N.Y.2d 268 [1966], app. dsmd. 388 U.S. 439, rehearing den. 389 U.S. 892; former Penal Law, § 1141; revised Penal Law, art. 235, see, e.g., §§ 235.20, 235.21; Prince v. Massachusetts, 321 U.S. 158 [1944]), or pandering, "which the Court found significant in Ginsburg v. United States, 383 U.S. 463" (Redrup v. New York, 386 U.S. 767, 769 [1967]), or "any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it" (Redrup v. New York, supra, p. 769; cf. Breard v. Alexandria, 341 U.S. 622 [1951]; Public Utilities Comm. v. Pollak, 343 U.S. 451 [1952]).

The magazines in question, entitled Daisy, Good Gals, Bunny, Sissy, Countess, Exciting and Cover Girl, contain single photographs of females in various poses and stages of nudity, some provocative, prominently displaying the vaginal aperture. The People concede that no sexual activity, e.g., sexual intercourse, sodomy or masturbation, is depicted, and defendants concede that the magazines were seized pursuant to lawful search warrants (cf. People v. Kozak, 56 Misc. 2d 337). Each defendant has pleaded not guilty.

Thus, the sole issue to be determined by the court is whether the distribution of these magazines is protected by the First and Fourteenth Amendments.

Since this question is a question of law, it is to be determined by the court (Jacobellis v. Ohio, 378 U.S. 184, 188 [1964]; United States v. I Am Curious-Yellow, 404 F. 2d 196), and thus, the motion is properly before the court (People v. Noroff, 67 Cal. 2d 791 [1967]; see, also, Model Penal Code, § 207.10, Comment 13.)

Freedom of the press, guaranteed by the First Amendment and absorbed into the Fourteenth Amendment (Gitlow v. New York, 268 U.S. 652 [1925]), does not extend to obscene material. The reason for this rule is based on the holding that obscene material is contraband and as such it enjoys no special constitutional protection (Roth v. United States, 354 U.S. 476, 485 [1957]).

Accordingly, if the publications in question are not obscene, no crime is charged and the motion must be granted.

Emotionalism, misconceptions and attempts to define "obscenity" have often led to confusion. (See People v. Marzano, 31 A.D.2d 52, 53.)

There are two judicially approved tests for obscenity -- the Federal test, and the New York State test.


The Federal test, sometimes called the "prurient interest" or "Roth" test (Roth v. United States, supra) applied in the Federal courts, fixes the minimum standards that a State may employ in judging publications for obscenity.

This test provided "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests" (Roth, supra, p. 489).

The test was amended in 1966 in three cases: Ginzburg v. United States (383 U.S. 463, supra), Mishkin v. New York (383 U.S. 502) and the " Fanny Hill " case, Memoirs v. Massachusetts (383 U.S. 413).

In Ginzburg, the court held that when an objective examination of the material in question fails to establish obscenity, then the court may examine into the publisher's intent and in that connection may consider the advertising material he issued in connection with the material under review. If the publisher attempted to "titillate" the sexual interests of the public in an effort to sell his product, then the courts may consider his advertising "at its face value" and declare the publication obscene.

In Mishkin, the court held that a publication aimed at deviant sexual groups is obscene if it appeals to the ...

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