People v. Abronovitz
| Decision Date | 08 April 1970 |
| Parties | The PEOPLE of the State of New York v. Morris ABRONOVITZ and Norton Abronovitz, Defendants. |
| Court | New York County Court |
The defendants Morris and Norton Abronovitz have been charged by the Monroe County Grand Jury (Indictment No. 25 filed January 24, 1969) with fifty-four counts of Obscenity in violation of Section 235.05 of the New York State Penal Law.
The facts leading to this indictment are as follows: On two separate days in January, 1969, persons connected with the Rochester Police Department and the Monroe County District Attorney's office purchased magazines from the book store of the defendants and known as Earl's Book Store at 81 Main Street West, Rochester, New York. The titles of the magazines were as follows: 'Josephine', 'Park Ave. Girls', 'Peak', 'Wink,' Lovey Dovey', 'Fancy Pants' and 'Foxy Lady'.
On January 7, 1969, and alleging a violation of Section 235.05 of the Penal Law, these purchases as well as a description of their contents, were recited in an application for a Search Warrant made to City Court Judge Edward O. Provenzano. The individual magazines were produced on the application for the scrutiny of the Magistrate. In the application, both the magazines produced, as well as other magazines alleged to have been observed on the premises, were described as depicting scenes disclosing the nude male and female exposing the male and female genital organs, the public area and breasts.
Based on this application, the Magistrate issued a search warrant ex parte directing the search of the defendants' book store and the seizure of magazines and photographs 'depicting scenes of nude persons, both male and female, depicting and exposing the genital organs.'
Following issuance of the search warrant, the Rochester Police Department, in possession of arrest warrants based on the earlier sales, executed the same, arrested the defendants and confiscated approximately 1023 magazines and calendars. Approximately 260 were identical or closely similar to the magazines described in the application and made available to the Magistrate as hereinbefore mentioned. The majority of the other magazines confiscated approximated those shown to the Magistrate in that they, too, display the male and female genital areas. Their dissimilarity, if any, is in the lesser degree in which these areas of the human anatomy are focused upon and exposed.
The defendants by their motion to controvert the grounds upon which the search warrant was issued, raise the following points:
1. The City Court, Magistrate was without authority to issue the search warrant without a prior adversary hearing on the issue of obscenity.
2. The search made by the police was under the authority of a general warrant not sufficiently describing the items to be seized in controvention of the Fourth Amendment to the United States Constitution in that it left too much to the discretion of the police concerning what was to be confiscated as obscene.
3. The search warrant was issued without probable cause in that what was described as obscene in the application for the warrant was constitutionally protected.
The defendants move to dismiss the indictment on the further grounds that (1) the items buttressing each count of the indictment are not obscene and hence within the protection of the First Amendment; and (2) that Section 235.05 of the New York State Penal Law is unconstitutional in that it provides a less permissive standard for obscenity than made and defined in People v. Richmond County News, 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681, in interpreting former Section 1141 of the Penal Law as proscribing only 'hard core pornography'.
The defendants rely on Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 and Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 as authority for their position that a prior adversary hearing was required before the search warrant in the instant case could be issued. In an informative discussion of Rage Books, Inc. v. Leary, D.C., 301 F.Supp. 546, 1969, the requirement of a prior adversary hearing has been recently discussed in the New York Law Journal. . In Rage Books the constitutionality of Sec. 792 of the Code of Crim.Proc. as it applied to obscenity was at issue. Upholding the authority of an ex parte seizure, the court distinguished Kansas and Marcus from the purpose and rationale of Sec. 792, Code Crim.Proc., authorizing searches upon an ex parte application. In Kansas and Marcus, the constitutionality of the state's civil statute authorizing the massive seizure of material for purposes of suppression was involved.
The aim and purpose of Sec. 792, Code Crim.Proc., is to aid the District Attorney, whose primary duty it is to enforce the state's penal statute proscribing sale of obscenity, a crime under Sec. 235.05 of the Penal Law.
(United States v. Wild, 2nd Cir., 422 F.2d 34, 1969).
Conceding that Rage Books and United States v. Wild, supra, limit an ex parte search and seizure to material necessary for prosecution of the substantive crime, the fact remains that in the instant case the defendants are charged with Possession With Intent to Promote Obscene Material and that the prosecution must in fact rely upon evidence of a quantity of similar material as indicative of such intent. Having this in mind, the seizure in the instant case cannot be deemed a massive seizure as proscribed in Kansas and Marcus.
As further authority for the Court's position that the Kansas and Marcus decisions are inapposite to a criminal prosecution, the court is cognizant of the failure of this state's appellate courts to discuss the necessity of a prior judicial hearing in decisions dealing with search and seizure of evidence essential in obscenity prosecutions when, in this court's view, such an issue would be a threshold consideration. (People v. Rothenberg, 20 N.Y.2d 35, 281 N.Y.S.2d 316, 228 N.E.2d 379 and People v. Hughes, 31 A.D.2d 235, 296 N.Y.S.2d 671.)
It appears from the argument of the District Attorney, which was not controverted by the able counsel for the defendants, that the police of this city were armed with warrants for the arrest of the defendants at the time of the search in question and that these warrants were based upon the complaint of the officer to whom the magazines 'Josephine', 'Park Ave. Girls', 'Peak' and 'Wink' were sold on January 3 and 6, 1969. This being a fact, then the search and seizure can be justified on the additional ground that it was incidental to a lawful arrest. (See People v. Matherson, 16 N.Y.2d 509, 260 N.Y.S.2d 448, 208 N.E.2d 180). The defendants' argument that an incidental search cannot be justified in obscenity cases is not well founded. Such a contention was answered by Judge Pollack in Rage Books when the stated:
'It cannot be the law, free speech rights notwithstanding, that peddlers and purveyors of smut and despicable vulgarity have a constitutional license to publicly exploit pictures, magazines and books plainly exhibiting gross depravity, with complete immunity from on-the-spot arrest of the merchant and seizure of a reasonable quantity of the evidence on which to prosecute the arrest.' (Rage Books, Inc. v. Leary, D.C., 301 F.Supp. 546, 549, 1969).
The defendants' argument is that an arrest with a warrant is even suspect in obscenity cases and seeks to distinguish People v. Matherson, supra, from the instant case on the grounds that Matherson was an on-the-spot arrest. Arrests with warrants charging earlier crimes have been justified because of the necessity for prior judicial scrutiny of the facts alleged as a basis for the warrant. (See Milky Way Productions, Inc., v. Leary, D.C., 305 F.Supp. 288, 1969).
With regard to the relevant argument that the incidental search in the instant case was wider in scope than now permitted under the authority of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, it is sufficient to note that Chimel has only prospective application. (United States v. Bennett, 415 F.2d 1113 (2d Cir. 1969)).
The defendants' second contention concerns itself with the language used by the issuing Magistrate in describing the items to be seized in the instant case. The search warrant directed and authorized the seizure of 'magazines and photographs depicting scenes of nude persons * * * disclosing and exposing the female and male genital organs, the female and male public areas, including the male penis and female breasts.' The warrant did not authorize the seizure of 'obscene material' as was the case in Rothenberg and Hughes, supra. By the clear language of the warrant, the police were not authorized to seize photographs of mere nudes disclosing portions of the anatomy unless they included the genital areas. In this regard, the police had no discretion. The Magistrate made the judicial determination of what was obscene, not the police.
While it must be conceded that in obscenity cases the issuing Magistrate must be mindful of the First Amendment's limitations on the Fourth Amendment's requirement for specificity and therefore he must use language sufficiently descriptive...
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