People v. Bercowitz

• Decision Date: 25 February 1970
• Citation: 308 N.Y.S.2d 1,61 Misc.2d 974
• Parties: The PEOPLE of the State of New York, Plaintiff v. Larry BERCOWITZ, Paul Georgiou, Jeanne Baretich, Mary Ann Shelley, John Kornhauser, Lennox Raphael, Edward Wode and Donald McAdams, Defendants.
• Court: New York City Court

Page 1

308 N.Y.S.2d 1

61 Misc.2d 974

The PEOPLE of the State of New York, Plaintiff v. Larry BERCOWITZ, Paul Georgiou, Jeanne Baretich, Mary Ann Shelley, John Kornhauser, Lennox Raphael, Edward Wode and Donald McAdams, Defendants.

Criminal Court of the City of New York, New York County, Part 2B4.

Feb. 25, 1970.

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

Lefcourt, Garfinkle, Crain, Cohn, Sandler, & Lefcourt, New York City, by Ann Garfinkle and Alan L. Hirshman, New York City, of counsel, for defendants Larry Bercowitz, Paul Georgiou, Jeanne Baretich, Mary Anne Shelley, John Kornhauser and Donald McAdams.

Lynn & Spitz, New York City, for defendant Edward Wode.

Alan Hirshman, Brooklyn, for defendants Lennox Raphael, Jeanne Baretich and Mary Anne Shelley.

ARTHUR H. GOLDBERG, Presiding Judge.

A play entitled 'Che,' written by defendant Lennox Raphael and produced by defendant Edward Wode, opened at the Free Store Theatre, on Cooper Square, in Manhattan, on March 22, 1969. Two days later, after a complaint had been executed by a deputy police inspector, a Judge of the Criminal Court viewed the play and issued warrants for the arrests of defendants Raphael and Wode and the six other defendants, five of whom were the performing actors, the sixth being the set designer and lighting operator.

All the defendants--they were arrested on March 24--were charged with the crimes, under the Penal Law, of obscenity ( § 235.05, subd. 2), public lewdness ( § 245.00), consensual sodomy ( § 130.38) and conspiracy in the fourth degree to engage in such conduct ( § 105.00).

The complaint was thereafter superseded by a Grand Jury information containing fifty-four counts which charge these crimes and specify acts of misconduct during performances of the play on March 20 (a preview), 24 and 26 and on April 26, 1969. The play continued to be shown at the same theatre, with a brief interruption shortly after the arrests.

The length and complexity of the trial were unavoidable. Specific physical activity comprising four separate performances were proved by the prosecution. This was shown (a) by the testimony of a deputy inspector of the Police Department who had attended all four performances (the observations were keyed into or related to the written script by the witness); (b) by the playing of a sound tape recording of the play; (c) by TV tapes--sound and visual--of about 25 minute portions of the performance of March 26 made by technicians of the National Broadcasting Company and the Columbia Broadcasting System who were invited by the producer to attend that performance, given two days after the arrests; (d) by a number of still photographs taken during the press performance of March 26; (e) by the opinion testimony of a well-known Broadway theatrical producer who testified that the play was in his opinion obscene and without redeeming social value.

Charging pandering, the prosecution showed that a newspaper advertisement was placed by the defendants, containing a quite large photograph of a nude woman lying on a nude man, annotated with a gamy caption; also a lengthy newspaper interview given by the defendant Raphael which reveals that a prurient interest in sex was dominant in the theme and intent of the play.

The interview and advertisement and, we add, the insistent and pervasive sex talk and vile profanity and utter filth which permeated the play, are not quoted in this opinion but they are quoted in the trial testimony and also appear as exhibits, which include the scripts and tape recordings.

On the pandering contention the prosecution also produced a witness who testified without contradiction that defendant Georgiou on opening night alighted from a limousine in front of the theatre and then walked across the sidewalk into the theatre dressed in the costume which he wore during the entire performance,--an Uncle Sam hat, a sash around his waist with a streamer down the side of one leg, and ten painted toenails, nothing else.

Defendant Rephael testified about the content and intent of the play (sex and politics he called it). A number of theatre critics and playwrights testified on behalf of the defendants. Their testimony for the most part amounted to assertions that any play has redeeming social value and that virtually no conduct on stage by actors during the performance of a play should be considered a violation of the obscenity laws. In effect these opinions amounted to a call for a repeal, or non-enforcement, of the obscenity laws. The witnesses were quite uniformly of the opinion that nudity and sexual activity have become the vogue on the so-called 'off-off-Broadway' ¹ stage. This new vogue they estimated as being about one year old at the time of the trial (January 1970). This new freedom was such, one witness said, that the 'off-off-Broadway' audiences would accept just about any kind of sexual activity on stage.

We turn to the charges in the order in which they appear in the information. First is the charge of obscenity, which underlies all the counts in the information.

With some frequency and for some years the opinion has been expressed in the press that the obscenity laws should be repealed, as they have been in Denmark, and that, if that were done, obscene performances and other material would come to be regarded as boring and would die out. Opinions to the contrary are not lacking. Quite evidently our State Legislature has adopted the view that the obscenity laws should be continued and enforced. In enacting Article 235 of the Penal Law, the Legislature made the obscenity laws less permissive (see commentary to Penal Law § 235.00 by Denzer and McQuillan, 39 McKinney's Consol. Laws, p. 89). Section 235.05 was amended as to form in 1969, but the section was continued in full force and effect by the Legislature (L.1969, ch. 583, § 2).

Given this clear and continuing mandate by the Legislature, this court must decide whether the play 'Che' as performed on March 24, 1969 was obscene under the Penal Law § 235.05, subd. 2, or whether the performance was protected by the First and Fourteenth Amendments.

The Penal Law definition of 'obscenity' ( § 235.00) closely parallels the United States Supreme Court's definitions of obscenity (cf. Redrup v. New York, 386 U.S. 767, 770--771, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); A Book Entitled 'Memoirs of a Woman of Pleasure' (Fanny Hill) v. Attorney General of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966)). Section 235.00 reads in part as follows:

'1. 'Obscene.' Any material or performance is 'obscene' if (a) considered as a whole, its predominant interest is to prurient, shamenful or morbid interest in nudity, sex, excretion, sadism or masochism, and (b) it goes substantially beyond customary limits of candor in describing or representing such matters, and (c) it is utterly without redeeming social value.'

The main problem, it has been often said, is one of determining just what is obscene, a problem which is said to persist unrelieved by the statutory definition. Mr. Justice Stewart has said that he finds it difficult to define hard-core pornography in words, but, he said, 'I know it when I see it' (concurring in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 794 (1964)). In another opinion, he said that hard-core pornography would include pictorial depiction of acts of sexual intercourse or sodomy (Stewart, J., dissenting in Ginzburg v. United States, 383 U.S. 463, 499, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966)). The California Supreme Court in In re Panchot, 70 Cal.2d 105, 73 Cal.Rptr. 689, 448 P.2d 385, 386 (1968) indicates a similar line of distinction in holding that still photographs were not obscene though showing nudes in poses emphasizing various parts of the body, because the pictures did not depict any form of sexual activity. Citing Landau v. Fording, infra, 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317; Miskin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56, and Ginzburg v. United States, Supra, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, the California Court said (In re Panchot, Supra, p. 107, 73 Cal.Rptr. p. 690, 448 P.2d p. 386, n. 5):

'Graphic depiction of sexual activity is the distinguishing feature of the only materials which the United States Supreme Court has ruled to be obscene.'

In People v. G. I. Distributors, 20 N.Y.2d 104, 106--107, 281 N.Y.S.2d 795, 796, 228 N.E.2d 787, 788 (1967), Judge Breitel found that the pictorial portrayal, in a pamphlet of a 'full range of sexual behavior between young males from byplay to pederasty' transgressed Section 1141 of the old Penal Law.

Such decisions by our highest courts do indicate palpable lines between obscenity and protected expression. The difficulty in delineating the obscene is nevertheless said to be a continuing one and that the attempt to draw a line should therefore simply be abandoned.

Justice Holmes would have disagreed. In a letter to Sir Frederick Pollock he said of such reasoning (2 Holmes-Pollock Letters, 2d ed., 28) that it

'reminds me of how people in the law as elsewhere hate to recognize that most questions--I think I might say all legal questions--are questions of degree. I have just sent back an opinion of one of our JJ. with a criticism of an argument in it of the 'where are you going to draw the line' type--as if all decisions were not a series of points tending to fix a point in a line.'

We believe that the play 'Che' indicates lines which can be drawn. Many kinds of sexual activity, most of it by nude actors, were shown during the performances covered by the information. One of the performers, already described, was nude throughout the performance, except for a hat and ribbon around his waist. One female defendant was completely nude during a good part of the performance. During one scene, she wore the lower part of a tiny bikini which kept slipping. The male...