People v. Mishkin
| Citation | 234 N.Y.S.2d 342,17 A.D.2d 243 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Edward MISHKIN, Defendant-Appellant. |
| Decision Date | 27 November 1962 |
| Court | New York Supreme Court Appellate Division |
Emanuel Redfield, New York City, for appellant.
Peter J. O'Connor, New York City, of counsel, H. Richard Uviller, New York City, with him on the brief; Frank S. Hogan, Dist. Atty., for respondent.
Before RABIN, J. P., and VALENTE, McNALLY, EAGER and STEUER, JJ.
Defendant was convicted in the Court of Special Sessions of multiple crimes in the possession and publication of obscene books and hiring others to prepare obscene books. We have considered the several specifications of error in connection with these convictions and find nothing prejudicial to defendant therein. Defendant was also convicted of 32 violations of General Business Law, § 330, a misdemeanor, and fined $500. For the reasons stated, we find this conviction to be unsupportable.
General Business Law, § 330, subd. 2, provides that every publication printed after September 1, 1956 (other than newspapers, magazines or other periodicals for which separate provision is made) published in this state shall have conspicuously printed in certain specified places the name and address of the publisher or printer. Section 331 makes the failure to carry out the provisions of the preceding section a misdemeanor. That the defendant, in the instances charged, published books which contained no imprint of his name or address was amply established. The difficulty with the conviction is that the section is unconstitutional.
The constitutionality of the section has never been tested. However, similar statutes in other states have been questioned (Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155). The ordinances involved in those cases dealt with handbills. But the vice of the restriction applies to other publications, particularly, as here, books. 'Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind' (Talley v. California, supra, 64, 80 S.Ct. 538). The gist of the holding is that before the state can require such a disclosure some grounds for the restriction of free expression resulting must be found in the statute or otherwise established. No such grounds appear in the statute.
The district attorney suggests that the statute may be found constitutional...
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...of $500 on the General Business Law counts. The obscenity convictions were affirmed by the Appellate Division, First Department, 17 A.D.2d 243, 234 N.Y.S.2d 342, on November 27, 1962, and by the Court of Appeals, 15 N.Y.2d 671, 255 N.Y.S.2d 881, 204 N.E.2d 209, on December 3, In the trial c......
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