People v. Finkelstein

• Citation: 9 N.Y.2d 342,214 N.Y.S.2d 363,174 N.E.2d 470
• Parties: , 174 N.E.2d 470 PEOPLE of the State of New York, Respondent, v. Louis FINKELSTEIN, Joseph Kleinberg, Nathan Goldstein, Louis Schaeffer and Herman H. Schenkman, Appellants.
• Decision Date: 30 March 1961
• Court: New York Court of Appeals Court of Appeals

Page 363

214 N.Y.S.2d 363

9 N.Y.2d 342, 174 N.E.2d 470

PEOPLE of the State of New York, Respondent, v. Louis FINKELSTEIN, Joseph Kleinberg, Nathan Goldstein, Louis

Schaeffer and Herman H. Schenkman, Appellants.

Court of Appeals of New York.

March 30, 1961.

Emanuel Redfield, New York City, for appellants.

Frank S. Hogan, Dist. Atty., New York City (Peter J. O'Connor and Richard G. Denzer, New York City, of counsel), for respondent.

BURKE, Judge.

Defendants, in a consolidated appeal from unanimously affirmed convictions of violations of section 1141 of the Penal Law, contend, inter alia, that the statute is violative of the Constitution of the United States in that it does not expressly require scienter. We do not agree.

Section 1141 provides in part that 'A person who sells * * * or has in his possession with intent to sell * * * any obscene * * * book * * * (i)s guilty of a misdemeanor'. It is our firm opinion, on this our first opportunity to construe the statute, in this respect, that the definition of the crime is instinct with the idea of scienter.

In Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, the United States Supreme Court declared unconstitutional a Los Angeles City ordinance which proscribed, and was construed to impose strict liability fir, MERE POSSESSION of obscene prints, regardless of the offender's awareness of the contents. The New York proscription, on the other hand, neither expressly, nor by our construction here, dispenses with this vital element of scienter, and, therefore, in no way impinges upon the traditional feedom guarantees of speech and the press (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498).

Although our statute might possible be interpreted to exclude scienter, we feel, inter alia, guided by the strong constitutional presumption attending legislative enactments (Wiggins v. Town of Somers, 4 N.Y.2d 215, 218, 173 N.Y.S.2d 579, 581; Lincoln Bldg. Associates v. Barr, 1 N.Y.2d 413, 415, 153 N.Y.S.2d 663, 634), that the statute was not intended to unreasonably restrict or inhibit our inalienable 'liberty' protected by due process (see Smith v. People of State of California, supra). A reading of the statute as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised, and a mere omission of the word 'scienter' need not be construed as an attempt to eliminate that common-law element of the crime. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; People v. Katz, 290 N.Y. 361, 49 N.E.2d 482.

In any event, the statute is at least susceptible of either interpretation, and we are, therefore, clearly obliged by statute and decisional law to embrace that which will preserve its validity. McKinney's Cons. Laws of N. Y., Book 1, Statutes, § 150; Matter of Coates, 9 N.Y.2d 242, 213 N.Y.S.2d 74; Matthews v. Matthews, 240 N.Y. 28, 34-35, 147 N.E. 237, 238-239, 38 A.L.R. 1079; Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N.Y. 270, 275, 115 N.E. 711, 712; Lyons v. Goldstein, 290 N.Y. 19, 23, 47 N.E.2d 425, 427, 146 A.L.R. 1422; People ex rel. Morriale v. Branham, 291 N.Y. 312, 317, 52 N.E.2d 881, 882. 'No statute should be declared unconstitutional if by any reasonable construction it can be given a meaning in harmony with the fundamental law.' People ex rel. Simpson v. Wells, 181 N.Y. 252, 257, 73 N.E. 1025, 1026; Kauffman & Sons Saddlery Co. v. Miller, 298 N.Y. 38, 44, 80 N.E.2d 322, 324. A conviction, therefore, cannot be upheld without proof of the element in question which we find required by section 1141. Such a holding is not extraordinary. The United States Supreme Court has pointed out that it has affirmed 'a conviction under the stated limitation of meaning'. Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840. In the view of that court: 'The interpretation by the Court of Appeals puts these words in the statute as definitely as if it had been so amended by the legislature.' (Winters v. People of State of New York, supra, 333 U.S. at page 514, 68 S.Ct. at page 669; emphasis supplied.)

At the time of the prosecution of the violations herein, the prevailing precedent (People v. Shapiro, 2d Dept., 6 A.D.2d 271, 177 N.Y.S.2d 670), however, since soundly repudiated (People v. Richmond County News, 2d Dept., 11 A.D.2d 799, 205 N.Y.S.2d 94; see, also, People v. Douglas, 12 A.D.2d 194, 209 N.Y.S.2d 734; People v. Finkelstein (People v. Schenkman), 12 A.D.2d 457, 207 N.Y.S.2d 389) declared that scienter was not an element of the crime. Defendants, perhaps believing because of Shapiro that their knowledge was irrelevant, did not take the stand or offer proof in this regard. Although they can be charged 'with knowledge of the scope of subsequent interpretation' (Winters v. People of State of New York, supra, 333 U.S. at page 514, 68 S.Ct. at page 670) we still fell that new trials are warranted by the circumstances and in the interests of justice, so that, although the People have the burden of proof, defendants may have an opportunity to testify or offer proof, if they desire, in regard to the presence of salacious literature in their possession for sale. However, we find it unnecessary to dismiss the informations which are phrased in statutory language. They are sufficient, especially in light of this our initial interpretation of section 1141, to appprise the defendants of the true nature of the crime.

Accordingly, the judgments should be reversed and new trials ordered.

VAN VOORHIS, Judge (dissenting).

On this appeal appellants challenge the constitutionality of section 1141 of the Penal Law in view of the recent decision by the Supreme Court of the United States in Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 216. Subdivision 1 of this section renders guilty of a misdemeanor any person 'who sells, lends, gives away, distributes, shows or transmutes, or offers to sell, lend, give away, distribute, show or transmute, or has in his possession with intent to sell, lend, distribute, give away, show or transmute or advertise in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book'.

Smith v. People of State of California, supra, held an ordinance of the City of Los Angeles to be unconstitutional which provided that it was unlawful 'for any person to have in his possession any obscene or indecent writing (or) book * * * (i)n any place of business where * * * books * * * are sold or kept for sale'. This ordinance had been construed by the California courts as not requiring knowledge of the obscene nature of the book on the part of the vendor. The Supreme Court held that if every bookseller were placed under an obligation to make himself aware of the contents of every book in his shop, it would restrict the public's access to reading matter to such a degree as to constitute an infringement of the constitutional guarantee of freedom of the press.

For the same reason it seems to us that Smith v. People of State of California, supra, renders unconstitutional subdivision 1 of section 1141 of [9 N.Y.2d 347] the Penal Law. The language is identical in substance with that of the ordinance of the City of Los Angeles which was held to be unconstitutional. As recently as 1958 the Appellate Division, Second Department, held in People v. Shapiro, 6 A.D.2d 271, 177 N.Y.S.2d 670, that knowledge by the bookseller of the obscene quality of books sold or on sale was not required to convict under subdivision 1 of section 1141 of the Penal Law. The opinion therein by Presiding Justice Nolan, speaking for a unanimous court, traces the codification and subsequent history of this statute from the time of its enactment in 1868. Many decisions are cited. The conclusion reached is inescapable that knowledge of the contents of obscene books by the bookseller was purposely omitted by the Legislature as an ingredient of the crime so as to avoid what was thought to have been a facile method of evasion of this law. It is impossible to believe that the Second Department in a memorandum decision in People v. Richmond County News, 11 A.D.2d 799, 205 N.Y.S.2d 94, intended to overrule the 10 learned pages of opinion which had...