People v. Dill

• Decision Date: 25 February 1957
• Citation: 165 N.Y.S.2d 286,7 Misc.2d 597
• Parties: PEOPLE of the State of New York v. Jack DILL.
• Court: New York Court of Special Sessions

Page 286

165 N.Y.S.2d 286

7 Misc.2d 597

PEOPLE of the State of New York v. Jack DILL.

Court of Special Sessions, Bronx County.

Feb. 25, 1957.

On Reargument July 12, 1957.

Daniel V. Sullivan, Dist. Atty., New York City (Anthony J. Magro, Asst. Dist. Atty., New York City, of counsel), for the People.

Howard E. Goldfluss and Sidney E. Rubenstein, New York City, for defendant.

KOZINN, Justice.

The defendant herein by a notice of motion, seeks 'an order dismissing the information against the defendant.'

Section 313 of the Code of Criminal Procedure provides for setting aside an indictment in the two cases therein specified, 'but in no other.' The defendant's motion papers (the notice of motion and an accompanying affidavit) do not come within the purview of that section. The affidavit contains the statement that it will be the contention of the defendant that section 1141 of the Penal Law 'as it applies to the publications in the within case, cannot possibly be the basis of a conviction of the defendant because it does not sufficiently set forth standards of guilt to meet constitutional requirements.'

Section 31(4) of the New York City Criminal Courts Act adopts all sections of the Code of Criminal Procedure regulating and controlling practice and procedure of the Court of General Sessions, as far as they are consistent with the practice and procedure in the Court of Special Sessions, and regulates and controls the practice and procedure of this court. Accordingly, a defendant, in a court of Special Sessions, may demur to an information or to any count thereof, when it appears upon the face of the information that the facts stated do not constitute a crime (People v. Zambounis, 251 N.Y. 94, 167 N.E. 183).

The proper procedure to test the sufficiency of the information upon the ground (Code of Criminal Procedure, sec. 323, subdiv. 4): 'that the facts stated do not constitute a crime' is by way of a demurrer. A demurrer must be interposed (Code of Criminal Procedure, secs. 315, 332) at the time of arraignment, or the objections are waived or precluded, except that certain objections, within the purview of section 331 of the Code of Criminal Procedure, may be urged at the trial. The record, here, discloses that the defendant entered a plea of 'Not Guilty' at the time of his arraignment; a demurrer may not be entertained while the 'Not Guilty' plea stands (People v. Kahn, 155 App.Div. 821, 140 N.Y.S. 618). The courts have overlooked technical defects in procedure (People v. Chester, 4 Misc.2d 949, 158 N.Y.S.2d 829). Since the notice of motion also seeks for 'such other and further relief,' this court, too, will overlook the defects in procedure, here, and will consider the present application as one seeking relief by way of demurrer. On a demurrer, all the facts alleged are to be deemed true (People v. Decina, 2 N.Y.2d 133, 157 N.Y.S.2d 558 and People v. Chester, supra); the information in the first count charges that, in violation of section 1141 of the Penal Law, the defendant: 'did have in his possession with intent to sell, lend, give away, distribute and show a quantity of lewd, indecent, lascivious, obscene, filthy, sadistic, masochistic and disgusting books, magazines, pamphlets, writings and publications,' (emphasis added) and in the second count: 'did show and did offer to sell, lend, give away, distribute and show' (emphasis added) such 'books, magazines, pamphlets, writings and publications.'

Section 1141 of the Penal Law, so far as the same is applicable here, reads: 'A person who * * * has in his possession with intent to sell, lend, distribute, give away or show * * * any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet * * * is guilty of a misdemeamor.' (Italics added.)

The charges in the information that the books, &c., were 'lewd, indecent, lascivious, obscene, filthy, sadistic, masochistic and disgusting,' being deemed to be true, and the statute, as hereinafter shown, being constitutional and valid, the question of the sufficiency of standards of guilt, if it can be argued at all, cannot be urged on a demurrer, but properly should be presented to the trial court, in arrest of judgment. People v. Reed, 276 N.Y. 5, 11 N.E.2d 330.

The defendant seeks a determination that section 1141 of the Penal Law be declared a nullity because, as he substantially contends, it is too vague to be intelligible.

An act of the Legislature, to have the force of law, must be intelligibly expressed (59 C.J. p. 601, sec. 160, 82 C.J.S. Statutes § 68 and cases cited) and, when too vague to be intelligible, it is a nullity (Standard Chemical & Metals Corp. v. Waugh Chemical Corp., 231 N.Y. 51, 54, 55, 131 N.E. 566, 567, 14 A.L.R. 1054). This statute pertains to the public welfare, is not vague and is intelligible. Mr. Justice Eder, in Larkin v. Consolidated Telegraph & Electric Subway Company, 193 Misc. 1001, 1005, 85 N.Y.S.2d 631, 635, in connection with legislation of a public nature, said: 'The court should endeavor, by a sensible and practical construction, to carry out the legislative object and intent; the act should receive an interpretation such as will save it from destruction.' The section, here, has been held to be constitutional (People v. Winters, 268 App.Div. 30, 48 N.Y.S.2d 230, affirmed 294 N.Y. 545, 63 N.E.2d 98) and sufficiently sets forth standards of guilt to meet constitutional requirements (Burke v. Kingsley Books, 208 Misc. 150, 142 N.Y.S.2d 735, affirmed sub nom. Brown v. Kingsley Books, 1 N.Y.2d 177, 151 N.Y.S.2d 639).

In the Burke v. Kingsley Books, supra, case Mr. Justice Matthew M. Levy, in a very learned opinion, at page 156 of 208 Misc., at page 740 of 142 N.Y.S.2d said: 'Repeated challenges to the definiteness of the term 'obscene' have been rejected Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031; American Civil Liberties Union v. City of Chicago, 3 Ill.2d 334, 347, 121 N.E.2d 585; Lockhart and McClure, Literature, The Law of...