decided: April 16, 1969.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
LOUIS CARLOS, APPELLANT
Appeal, by permission of an Associate Judge of the Court of Appeals, from a judgment of the Jefferson County Court, entered November 19, 1966, affirming a judgment of the City Court of the City of Watertown (George G. Inglehart, Jr., J.), rendered upon a verdict convicting defendant of violating section 1141 (subd. 1) of the former Penal Law. The information charged that, on or about and between April 23 and April 27, 1966, defendant, a shopkeeper, "did wilfully, wrongfully and corruptly have in his possession with intent to sell certain magazines, the same being obscene, lewd, filthy, indecent and disgusting". In the Court of Appeals defendant argued that the two magazines which were found to be obscene did not constitute hard-core pornography and were, accordingly, constitutionally protected.
Concur: Judges Burke, Scileppi, Keating, Breitel and Jasen. Chief Judge Fuld dissents and votes to reverse in the opinion in which Judge Bergan concurs.
Chief Judge Fuld (dissenting). Although the magazines before us are inexcusably vulgar and tawdry, I do not see how, in the light of constitutional principles heretofore enunciated, they may be held obscene either under the tests laid down by our decisions (see People v. Richmond County News, 9 N.Y.2d 578, 586-587; People v. Finkelstein, 11 N.Y.2d 300, 304, 305; Larkin v. Putnam's Sons, 14 N.Y.2d 399; cf. People v. G. I. Distrs., 20 N.Y.2d 104, 107) or under Federal standards. (See, e.g., Redrup v. New York, 386 U.S. 767; Conner v. City of Hammond, 389 U.S. 48; Felton v. City of Pensacola, 390 U.S. 340; Memoirs v. Massachusetts, 383 U.S. 413; Roth v. United States, 354 U.S. 476; see, also, People v. Noroff, 67 Cal. 2d 791, 794, n. 6.) "[The] price of freedom * * * of speech or of the press", as Justice Jackson reminded us in United States v. Ballard (322 U.S. 78, 95 [dissenting opn.]), "is that we must put up with, and even pay for, a good deal of rubbish."
I would, therefore, reverse the judgment of conviction.
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