People v. Stabile

Decision Date24 January 1969
Citation58 Misc.2d 905,296 N.Y.S.2d 815
PartiesPEOPLE of the State of New York, Plaintiff, v. Emilio STABILE et al., Defendants.
CourtNew York City Court

Frank S. Hogan, Dist. Atty., New York County, for the People; Kenneth Conboy, Asst. Dist. Atty., of counsel.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, for defendants; Herald Price Fahringer, Buffalo, of counsel.

OPINION

WILLIAM E. RINGEL, Judge.

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, twelve 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 (1966), 18 N.Y.2d 268, 274 N.Y.S.2d 131, 220 N.E.2d 783, app. dism. 388 U.S. 439, 87 S.Ct. 2107, 18 L.Ed.2d 1300, rehr'g den. 389 U.S. 892, 88 S.Ct. 15, 19 L.Ed.2d 204; former Penal Law § 1141; Revised Penal Law Art. 235, see e.g. §§ 235.20, 235.21; Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944)), or pandering, 'which the Court found significant in Ginzburg v. United States, 383 U.S. 463 (86 S.Ct. 942, 16 L.Ed.2d 31)' (Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (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,' cf., Breard v. City of Alexandria (1951), 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities Commission of District of Columbia v. Pollak (1952), 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. (Redrup, ibid.)

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, 288 N.Y.S.2d 692). 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 (1964), 378 U.S. 184, 188, 84 S.Ct. 1676, 12 L.Ed.2d 793; United States v. I Am Curious--Yellow, 2 Cir., 404 F.2d 196, 1968), and thus, the motion is properly before the Court (People v. Noroff (Calif.1967), 67 Cal.2d 791, 63 Cal.Rptr. 575, 433 P.2d 479; see also Model Penal Law, sec. 207.10(13).)

Freedom of the press, guaranteed by the First Amendment and absorbed into the Fourteenth Amendment (Gitlow v. New York (1925) 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138), 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 (1957), 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498).

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, 295 N.Y.S.2d 228)

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

A. The Federal 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 interest' (Roth, ibid at p. 489, 77 S.Ct. 1304, at p. 1311).

The test was amended in 1966 in three cases, Ginzburg v. United States (383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31), Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 and the 'Fanny Hill' case, A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts (383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1).

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 'titilate' 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 prurient interest of those groups.

In 'Fanny Hill' the Court held under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is 'utterly without redeeming social value' (383 U.S. at p. 418, 86 S.Ct. 975 at p. 977).

'Fanny Hill' thus modified Roth by requiring that a publication must be Utterly without redeeming social value before it could be proscribed. Nevertheless, if the book was 'designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large,' it may likewise be proscribed (Mishkin, at p. 508, 86 S.Ct. 958, at p. 963).

The term 'contemporary community standards' must not be interpreted in a parochial sense but is equated with the contemporary community standards of the nation as a whole since the area of expression that is protected is governed by the Federal Constitution (Jacobellis v. Ohio, supra, at p. 193, 84 S.Ct. 1676).

'Fanny Hill' was followed by Redrup v. New York (1967) (386 U.S. 767, 87 S.Ct. 1414). In effect, Redrup holds material to be obscene if it is hard-core pornography, And, in 'borderline' cases, the publication may be proscribed if (a) it is sold to a minor in violation of some local statute (People v. Tannenbaum, 18 N.Y.2d 268, 274 N.Y.S.2d 131, 220 N.E.2d 783, supra; Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, supra), Or, (b) if it is pandered (Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, supra), Or, (c) if it is foisted upon an unwilling public (Redrup, ibid; cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, supra; Public Utilities Commission v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068, supra).

Any doubt as to the meaning of Redrup is resolved in Central Magazine Sales, Ltd. v. United States (1967) (389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49). Central Sales involved a magazine called 'Exclusive' which contained a collection of photographs of females in various stages of nudity, and some of which are posed in such a manner as 'to reveal the genital area in its entirety.' There was also some suggestion of masochism in some of the photographs. Although the trial court found the magazine to be obscene (United States v. 392 Copies of a Magazine Entitled Exclusive, 253 F.Supp. 485), which determination was affirmed on appeal (373 F.2d 633), nevertheless, the United States Supreme Court reversed without opinion, per curiam, citing only Redrup.

In many other recent cases the United States Supreme Court has likewise summarily reversed, without opinion, federal and state court findings of obscenity as to magazines showing photographs of nude or semi-nude males or females which focused on the genitalia. In each of these cases Redrup was the authority cited. (Potomac News Agency v. United States (1967), 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46; Conner v. City of Hammond (1967), 389 U.S. 48, 88 S.Ct. 234, 19 L.Ed.2d 47; Books, Inc. v. United States (1967), 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311.) (See also United States v. 4,400 Copies etc. (1967), 276 F.Supp. 902, in which the Maryland United States District Court sat en banc.)

The term 'hard-core' pornography is an imprecise term. In his dissent in Jacobellis v. Ohio, supra, at p. 197, 84 S.Ct. 1676, at p. 1683, Mr. Justice Stewart stated '* * * perhaps I could never succeed in intelligibly' defining that term, 'but I know it when I see it.' However, in a subsequent dissenting opinion (Ginzburg v. United States, supra, at p. 499, 86 S.Ct. 942, at p. 957, f.n. 3) he set forth what he meant by that term:

'* * * Such materials include photographs, both still and motion picture, with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and sometimes involving several participants in scenes of orgy-like character. They also include strips of drawings in comic-book format grossly depicting similar activities in an exaggerated fashion * * *.'

B. The New York Test

In interpreting former New York Penal Law, section 1141, the New York Court of Appeals held that it 'should apply only to what may properly be termed 'hard-core pornography. " (People v. Richmond County News (1961), 9 N.Y.2d 578, 586, 216 N.Y.S.2d 369,...

To continue reading

Request your trial
15 cases
  • Stroud v. State
    • United States
    • Indiana Supreme Court
    • 15 Octubre 1971
    ... ... or indecent.' The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.' (354 U.S. 491, 77 S.Ct. 1312) ... 'Many decisions have recognized that these terms of obscenity statutes are not ... See, for example, United States v. 4400 Copies of Magazines, etc., 276 F.Supp. 903 (D.Md.1967); People v ... Page 856 ... Stabile, et al. (1969), 296 N.Y.S.2d 815, 58 Misc.2d 905; Wayne County Prosecutor v. Doerfler (1968), 14 Mich.App. 428, 165 N.W.2d 648; State v. J. L ... ...
  • State v. Hoyt
    • United States
    • Minnesota Supreme Court
    • 6 Febrero 1970
    ...court held that they were of the same quality as those dealt with in the Redrup case. A similar result was reached in People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815, where the Criminal Court of New York City felt obliged to dismiss criminal complaints in reliance on Redrup although the......
  • People v. Heller
    • United States
    • New York Court of Appeals Court of Appeals
    • 28 Diciembre 1973
    ...N.E. 169 (portrayal of characters in a play as coarse and vulgar, who employ coarse and vulgar language, not obscene); People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 (photographs of nudes, with no indication of sexual activity, did not amount to hard core pornography)). The fact of an ......
  • People v. Mature Enterprises, Inc.
    • United States
    • New York City Court
    • 1 Marzo 1973
    ...86 S.Ct. 942, 16 L.Ed.2d 31 (1966), as would the finding of any one of the three added tests in Redrup, supra. (People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 (1969); Shinall v. Worrell, D.C., 319 F.Supp. 485 (1970).) Clearly, this case does not involve admission to the theatre of mino......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT