People v. Ferber

• Decision Date: 21 October 1982
• Citation: 57 N.Y.2d 256,441 N.E.2d 1100,455 N.Y.S.2d 582
• Parties: , 441 N.E.2d 1100 The PEOPLE of the State of New York, Respondent, v. Paul Ira FERBER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 582

455 N.Y.S.2d 582

57 N.Y.2d 256, 441 N.E.2d 1100

The PEOPLE of the State of New York, Respondent, v. Paul Ira FERBER, Appellant.

Court of Appeals of New York.

Oct. 21, 1982.

Herald Price Fahringer and Paul J. Cambria, Jr., Buffalo, for appellant.

Robert M. Morgenthau, Dist. Atty. (Robert M. Pitler, Mark Dwyer and Donald J. Siewert, Asst. Dist. Atty., of counsel), for respondent.

Edmund J. Burns, Gregory A. Loken and William A. Cahill, Jr., New York City, for Covenant House, amicus curiae.

Henry R. Kaufman, Roy Gainsburg, Arthur N. Eisenberg and Steven R. Shapiro, New York City, for Ass'n of American Publishers, Inc., and others, amici curiae.

OPINION OF THE COURT

PER CURIAM.

The United States Supreme Court has remanded this case for our reconsideration. That court held, for the first time, that a State is not prohibited under the First Amendment of the United States Constitution from proscribing certain nonobscene sexual depictions of children. The Supreme Court has also indicated that such a law may be upheld unless it reaches impermissible applications (New York v. Ferber, 458 U.S. ----, ----, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113). The only question remaining in this case is whether the defendant's rights under this State's Constitution were violated.

The protection afforded by the State constitutional right of free expression (N.Y. Const., art. I, § 8) is as broad as that provided by the First Amendment and, as the Supreme Court has noted, may in fact provide greater protection (PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741). However, the type of performance prohibited by the statute, which was the subject of this prosecution, is not entitled to that greater protection.

Thus we conclude that the statute (Penal Law, § 263.15), as applied to this case does not violate the right of freedom of expression guaranteed by the State Constitution. We decline the invitation of the appellant and the amici to address or to anticipate questions as to the constitutionality of the statute as applied to other factual situations.

The order of the Appellate Division should be affirmed. 74 A.D.2d 558, 424 N.Y.S.2d 967. MEYER, Judge (concurring).

While I agree that the statute as applied to the instant case does not violate the State Constitution, I would as a matter of State constitutional law recognize an affirmative defense for literary, scientific, educational, governmental or other similar justification,...