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PEOPLE STATE NEW YORK v. PHILIP STEINBERG (10/02/69)
COUNTY COURT OF NEW YORK, WESTCHESTER COUNTY
1969.NY.42961 <http://www.versuslaw.com>; 304 N.Y.S.2d 858; 60 Misc. 2d 1041
October 2, 1969
THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.PHILIP STEINBERG, 208 CINEMA, INC., AND AMERICAN FILM DISTRIBUTING CORP., DEFENDANTS
Carl A. Vergari, District Attorney (Janet Cunard of counsel), for plaintiff.
William M. Kunstler for defendants.
John C. Marbach, J.
Defendants, Steinberg and 208 Cinema, Inc. move for the following orders: (1) granting said defendants permission to inspect the Grand Jury minutes; (2) directing the People to furnish said defendants with a list of the witnesses they intend to call upon the trial of the within indictment; (3) directing the People to furnish said defendants with a bill of particulars; (4) suppressing all evidence seized from said defendants by the People in the instant case or, in the alternative, granting them a hearing on the validity thereof; (5) directing the People to furnish said defendants with all prints seized thereby, so that experts intended by said defendants to testify thereat may view same sufficiently in advance of trial; (6) dismissing the indictment herein on the grounds that (a) section 235.05 of the Penal Law of the State of New York is unconstitutional, in violation of the First and Fourteenth Amendments to the Constitution of the United States, and/or (b) the exhibition of the films set forth in the indictment is protected by the First and Fourteenth Amendments to the Constitution of the United States; (7) dismissing the indictment herein on the grounds of adverse pretrial publicity or, in the alternative, granting a change of venue to New York County.
The facts are as follows:
On April 18 and 21, 1969, an Assistant District Attorney of Westchester County, William H. McKenna, attended a performance at the Capitol Theatre and viewed two films then being exhibited. They were entitled "The Girl from Pussycat" and "Professor Lust." He also viewed a "trailer" or preview of coming attractions entitled "Babette," "The King," "All Women are Bad," "I, a Woman," and "Carmen Baby."
Mr. McKenna then made an affidavit in which he described "The Girl from Pussycat" in considerable detail, and "Professor Lust" and the trailer in somewhat less detail. He submitted this affidavit to County Judge, George D. Burchell, of Westchester County. The Judge himself attended a performance at the Capitol Theatre on April 22, 1969 and viewed "The Girl from Pussycat," "Professor Lust," and the trailer. The Judge thereupon issued a search warrant dated April 22, 1969 in which he stated that he had viewed the film and that he was satisfied that they violated both the State and Federal obscenity and pornography laws. The warrant commanded the police to seize "any and all reels of motion picture film, including but not limited to" "The Girl from Pussycat", "Professor Lust", the trailer, advertising material, and projection equipment. Pursuant to this warrant, the police immediately seized "The Girl from Pussycat", "Professor Lust", certain advertising material, and projection equipment. The trailer was not available when the police visited the theatre. They also seized two other films which had not yet been exhibited at the theatre entitled "The King," and "All Women are Bad."
Steinberg was arrested and arraigned in the Village Justice Court of Special Sessions of Port Chester on an information charging obscenity in violation of section 235.05 of the Penal Law. Subsequently, the case was presented to the Westchester County Grand Jury which, on April 25, returned an indictment against Steinberg on this charge.
On April 25, 1969 McKenna made another affidavit for another search warrant in order to seize the trailer. On April 23 Judge Burchell issued a search warrant for its seizure. This warrant was immediately executed and the trailer for "I, a Woman" and "Carmen Baby" was seized.
Subsequently, there was another search and seizure. On May 10, 1969 McKenna made another affidavit in which he recounted what he had observed when he attended the Capitol Theatre on May 8. On that occasion he viewed two films entitled "A Thousand Pleasures" and "Love is Where Its At," and a trailer of two coming attractions entitled "Sock It to Me Baby," and "Campus Heat." The affidavit describes these films and the trailer in detail. McKenna submitted this affidavit to a Village Justice in Port Chester who himself viewed the films and trailer, found them obscene, and then signed a warrant authorizing the seizure of "any and all reels of motion picture film including but not limited to" "A Thousand Pleasures" and "Love is Where Its At," and the trailer of "Sock It to Me Baby" and "Campus Heat." Pursuant to this warrant, these two films and the trailer were seized. No other films were seized.
Steinberg was rearrested on May 10 at which time he moved to suppress all the films seized on April 22, 25 and May 10, 1969. On May 14 the Westchester County Grand Jury returned an 18-count indictment which subsequently was superseded by a 27-count indictment charging the above two defendants and their co-defendant, American Film Distributing Corp., with the crime of obscenity.
The general test for obscenity has been defined, for First Amendment purposes, as being whether, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. (Roth v. United States, 354 U.S. 476, 489.) Three elements must coalesce: It must be established that (1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (2) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (3) the material is utterly without redeeming social value. (Memoirs v. Massachusetts, 383 U.S. 413, 418.)
New York State has adopted the above Federal standard as its definition of obscenity. (Penal Law, § 235.00.)
The court will treat the main issues first before deciding the other portions of the omnibus motion.
It is defendants' contention that the films were seized without a prior adversary judicial proceeding in court in violation of defendants' rights under the First and Fourteenth Amendments. Defendants rely on several decisions in other circuits throughout the Nation: Metzger v. Pearcy (393 F. 2d 202 [7th Cir. 1968]; Cambist Films v. Illinois (292 F. Supp. 185 [N. D. Ill., 1968]); Cambist Films v. Tribell (293 F. Supp. 407 [E. D., Ky., 1968]), and on the holdings and language of the United States Supreme Court in Marcus v. Search Warrant (367 U.S. 717); A Quantity of Books v. Kansas (378 U.S. 205); Lee Art Theatre v. Virginia (392 U.S. 636). Defendants further seek a determination that section 235.05 of the Penal Law of the State of New York is unconstitutional. Finally, defendants ask this court to uphold their contention that every film has "redeeming social importance". In opposition the People rely on the recent decisions of the United States District Court for the Southern District of New York in 208 Cinema, Inc. v. Vergari (decided Aug. 8, 1969, McLean, J.) and Rage Books v. Leary (301 F. Supp. 546).
The court denies the motion in its entirety, with the limited exception noted herein. Since the Court of Appeals for the Second Circuit has granted a stay on September 15, 1969, pending appeal of that portion of Judge McLean's opinion which suppressed the seizure of the films entitled "The King" and "All Women Are Bad", this court will ...