Gregory v. Ball
| Decision Date | 02 November 1960 |
| Parties | Elizabeth GREGORY, individually, and Elizabeth Gregory, d/b/a Book-Mart, Nathan J. Bunis, individually, and Nathan J. Bunis, d/b/a Bunis Book Shop, and Raymond Guenther and Raymond Guenther d/b/a Genesee Book Store and Genesee Distributing Company, Plaintiffs, v. Carman F. BALL, sued as Carman F. Ball, District Attorney of Erie County; Louis J. Lefkowitz, sued as Louis J. Lefkowitz, as Attorney General of the State of New York; B. John Tutuska, sued as B. John Tutuska, as Sheriff of Erie County, State of New York, and Frank Felicetta, sued as Frank Felicetta, Commissioner of Police, City of Buffalo, New York, Defendants. |
| Court | New York Supreme Court |
Lipsitz, Green, Fahringer & Fleming, Buffalo (Herald P. Fahringer, Jr., Buffalo, of counsel), for plaintiffs.
Carman F. Ball, Dist. Atty. of Erie County, Buffalo, for defendant Ball, etc.
Louis J. Lefkowitz, Atty. Gen., for defendant Lefkowitz, etc.
Elmer R. Weil, County Atty., Buffalo, for defendant B. John Tutuska, etc.
Anthony Manguso, Corporation Counsel, Buffalo, for defendant Frank Felicetta, etc.
Plaintiffs move for summary judgment as demanded in the complaint, declaring that Section 1141, subdivisions 1 and 2, of the Penal Law is unconstitutional. The moving papers state that plaintiffs are in business in the City of Buffalo, New York, selling magazines, periodicals and other printed matter to the public; that there are '* * * literally thousands of magazines, books, periodicals and other printed matter being sold to the public,' by these plaintiffs who purchase them in large quantities from wholesalers in the cities of Buffalo and/or New York, from week to week; that plaintiffs have been or are about to be arrested or prosecuted under Section 1141, Penal Law, by law enforcement agencies of Buffalo and Erie County for selling alleged obscene literature; that said statute '* * * does not require that the vendor or seller of any book, periodical, magazine or other printed matter have any knowledge that the literature sold is obscene, lewd, lascivious, filthy, indecent, etc.;' that this imposes absolute criminal liability without knowledge of the crime; that to protect themselves from prosecution and conviction thereunder, plaintiffs would have to read every item of printed matter in their stores, a task that would force them out of business, thereby restricting the public's access to reading material; that in June, 1960, two Buffalo police officers came to the Book-Mart at 4 E. Chippewa Street, Buffalo, New York, claimed that some publications on display contained 'dirty pictures,' purchased some, stating they would make 'an issue of this,' leading one Donald Gregory, as manager of the Book-Mart, to believe that he was to be prosecuted for possessing or selling obscene literature; that said police officers repeated these threats on numerous other occasions.
An answerng affidavit of an Assistant District Attorney of Erie County states plaintiffs' present issues of fact that require a trial; it is reasonable for a book-seller to have knowledge of what he is selling; this is not a justiciable dispute '* * * in that there is no showing that the plaintiffs do not have other sufficient adequate remedies in law and in equity.'
The complaint also states that plaintiff Bunis was arrested October 22, 1959 for allegedly selling obscene magazines, but was later acquitted in Buffalo City Court; that May 23, 1960, plaintiff Guenther and his wife, Edna Guenther, were arrested on a similar charge and will be tried in said court; that Section 1141, subdivisions (1) and (2), Penal Law, is unconstitutional because it does not require '* * * scienter-knowledge on the part of the plaintiffs or any vendor of the contents * * *' of said reading matter; and imposes criminal liability without a requirement of any actual knowledge that the book is obscene; that it violates United States Constitution, First and Fourteenth Amendments, and New York State Constitution, Article I, Sections 6 and 8.
The defendants' answers are general denials.
'Is guilty of a misdemeanor, and, upon conviction, shall be sentenced to not less than ten days nor more than one year imprisonment or be fined not less than one hundred fifty dollars nor more than two thousand dollars or both fine and imprisonment for the first offense; for a second offense, shall be sentenced to not less than thirty days nor more than one year or be fined not less than two hundred fifty dollars nor more than three thousand dollars or be both fined and imprisoned; for a third offense, shall be sentenced to an indeterminate term of not less than six months nor more than three years and in addition thereto may be fined not more than five thousand dollars.' L.1958, c. 737.
The statute against obscene literature has been before our State Legislature for change, repeal, re-enactment, amendment and addition for almost 100 years. In 1868, it forbade one to 'sell', 'offer to sell,' 'give away,' 'offer to give away,' 'have in his or her possession with intent to sell or give away' obscene liternature, punishable by one year in county jail, or $1,000 fine, one-third payable to the informer, one-third to the county school fund, one-third to the Female Guardian Society of New York City and county or to the orphan asylum in any other county of conviction. L .1868, c. 430. Emphasis supplied herein unless otherwise noted. In 1872, the 'intent' as to possession was changed to read 'have in his or her possession, with or without intent to sell or give away;' this temporarily removed the one requirement of 'intent' which was limited to the act of 'possession' in the entire act. L.1872, c. 747. This was repealed in 1881 (L.1881, c. 676, sec. 726) and re-enacted in the new Penal Code as Section 317 (Ibid.), which returned to the wording of 1868, namely, 'has in his possession, with intent to sell or give away' such obscenity. This basically continued through the many changes (see L .1884, c. 380; L.1887, c. 692; L.1900, c. 731; L.1941, c. 925; L.1950, cc. 623, 624; L.1954, c. 703; L.1955, c. 837; L.1956, cc. 423, 661, 662, 681; L.1957, c. 690; L.1958, cc. 735, 736, 737) to the present time.
A proposed model obscenity statute would state: 'A person who creates, buys, procures or possesses obscene matter with purpose to disseminate it unlawfully commits a misdemeanor.' The American Law Institute, Model Penal Code, No. 6, 1957, sec. 201.10(5). Emphasis supplied. Prior to the Eighteenth Century, obscenity in Anglo-American law was almost exclusively a church matter; today, criminal obscenity legislation is almost universal. Ibid., Comments, p. 5. In the model, the acts of creating, buying, procuring and possessing are made criminal only when coupled with 'a 'purpose to disseminate it unlawfully.' Ibid., Comments, pp. 17-18. Illustrative statutes usually express scienter (Lat. knowingly), but not always: United States prohibits obscenity when it is engaged in knowingly (Ibid., pp. 59, 60); Colorado, no scienter (Ibid., p. 61); Georgia, knowingly, intent to sell (Ibid., p. 65); Louisiana, intentional, intention to display (Ibid., p. 69); Massachusetts, purpose of sale, intends to sell (Ibid., pp. 71, 72); Wisconsin, intentionally (Ibid., p. 82) Canada, purpose of publication (Ibid., p. 83); England, purpose of sale (Ibid., p. 87); New Zealand, wilfully (Ibid., 93).
Legislation carries a strong presumption of constitutionality rebuttable only when established beyond a reasonable doubt to be arbitrary and confiscatory. Defiance Milk Products Co. v. DuMond, 309 N.Y. 537, 540-541, 132 N.E.2d 829, 830. See also Wiggins v. Town of Somers, 4 N.Y.2d 215, 218-219, 173 N.Y.S .2d 579, 581, 582. Clearly drawn criminal legislation to protect the public from the inherent evils of disseminated obscene matter is not barred by constitutional guarantees of freedom (Brown v. Kingsley Books, 1 N.Y.2d 177, 181, 151 N.Y.S.2d 639, 641, affirmed 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469); the issue is one of balancing competing interests. Ibid., 1 N.Y.2d at page 188, 151 N.Y .S.2d at page 647.
On March 29, 1948, the Supreme Court of the United States struck down as unconstitutional, being too vague and indefinite, subdivision 2 of section 1141, Penal Law of New York, added to this section by Laws of 1941, Chapter 925, which had to do with '* * * criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime,' stating that: 'No intent or purpose is required--no indecency or obscenity in any sense heretofore known to the law.' Winters v. People of State of New York, 333 U.S. 507, 519, 68 S.Ct. 665, 672, 92 L.Ed. 840, Reed, J., speaking for the majority of the court, Frankfurter, Jackson and Burton, JJ., dissenting. By L.1950 c. 623, sec. 2, the New York Legi...
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People v. Kirkpatrick
... ... Also Paterson v. University of State of New York, 14 N.Y.2d 432, 438, 252 N.Y.S.2d 452, 455, 201 N.E.2d 27, 30 (1964); Gregory v. Ball, 25 Misc.2d 861, 864, 207 N.Y.S.2d 52, 56 (1960). 'No statute should be declared unconstitutional if by any reasonable construction it can ... ...
- Gregory v. Ball