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DISTRICT COURT OF NEW YORK, FIRST DISTRICT, NASSAU COUNTY 1969.NY.42845 <>; 304 N.Y.S.2d 379; 60 Misc. 2d 850 September 17, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.GEORGE W. HALL, JR., THOMAS CUCCARO, RICHARD J. NALBACH, CLYDE BRUCE, RUTH M. BAKEY, BETHVIEW AMUSEMENT CORPORATION, AND DAVID DOE CORPORATION, DEFENDANTS Rubenstin & Rubenstin (Richard Cahn and Walter J. Law of counsel), for Thomas Cuccaro, defendant. Bracken & Sutter (John Sutter of counsel), for George W. Hall, Jr., and others, defendants. William Cahn, District Attorney (George Levine of counsel), for plaintiff. Francis J. Donovan, J. Author: Donovan

Francis J. Donovan, J.

Author: Donovan

 Defendants move to suppress the introduction into evidence of two motion picture films, one entitled "The Odd Triangle" and the other a preview of coming attractions. Defendant, Thomas Cuccaro, is separately represented and moves in his own behalf. The remaining defendants are joined in a single motion, wherein additional relief is asked, to wit: "all fruits, products and derivative evidence" also be suppressed.

The major question presented is one of law, namely: Is an adversary hearing required before films alleged to be obscene may be seized by law enforcement officers?

Counsel for Cuccaro did not join in the stipulation which was entered into by the District Attorney and counsel for the other defendants. Pursuant to that stipulation, any objection to the validity of the search warrant and the manner of execution, except insofar as the aforesaid question of law is involved, was waived.

The affidavit upon which the search warrant was issued appears in all respects to be valid and to establish "reasonable and probable cause". Furthermore the evidence established that the Judge who signed the warrant, himself viewed the film before so signing. It further appeared from the evidence at the hearing that the defendant, Cuccaro, was fully apprised of the authority and purpose of the law enforcement officers to whom he surrendered the films.

At the end of a long argument -- almost as an afterthought -- the District Attorney questioned the standing of several of the defendants, contending that they did not have the necessary status to support the motion to suppress.

There is no merit in such a contention. The defendants are all alleged to have, in concert, possessed and promoted the films. It follows that they are all victims of the allegedly, illegal search and seizure or "one against whom the search was directed" (People v. Estrada, 28 A.D.2d 681).

On the main question of law, defendants, in addition to contending that the search and seizure were illegal because of lack of a prior adversary hearing, contend that an order heretofore made by Judge Travia in the United States District Court for the Eastern District of New York has already determined that question in favor of the defendants and is binding upon this court. We will take the questions in inverse order.

The order of Judge Travia contains a recital, under conclusions of law, "the seizure of said print of said film together with trailers and a lens, constituted an illegal seizure, being in violation of plaintiff's rights protected by the first, fourth and fourteenth amendments to the United States Constitution".

Judge Travia went on to order the return of the films and lens to the Bethview Amusement Corporation and ordered the agents of the corporation to hold the same safely in their possession subject to call by the prosecutor upon the trial in this court. He further ordered that the Bethview Amusement Corporation shall not exhibit the print of the films to the public pending the determination of the trial in this, the District Court of the County of Nassau, provided that the prosecution does not unreasonably delay the trial.

It is interesting to note that Judge Travia struck out from the proposed order a paragraph that would have required the prosecutor to turn over to the Bethview Amusement Corporation any and all copies of the film which may have been made while the same was in the prosecutor's possession, together with any still photographs that may have been reproduced from the seized print.

The order was in the nature of a temporary injunction in a civil action in which the law enforcement officers are defendants. The short answer to the contention that the Federal court order is binding on this court under the doctrine of collateral estoppel is that there has been no final judgment in the Federal court action, nor any disposition or order which purports in any sense to be final.

Applying the test set forth in Lummus Co. v. Commonwealth Oil Refining Co. (297 F. 2d 80 [2d Cir. 1962], cert. den. 368 U.S. 986 sub nom. Dawson v. Lummus Co. [1962]), Judge Travia's order is "avowedly tentative". On its face it contemplates a prompt trial in the District Court of Nassau County where all the issues shall be resolved.

Judge Travia's disposition is in accord with the recognized policy in both statute and decision whereby the United States courts refrain from enjoining State court prosecutions or prematurely judging questions which may arise in ...

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