People v. Finkelstein
| Decision Date | 10 November 1960 |
| Citation | 12 A.D.2d 457,207 N.Y.S.2d 389 |
| Parties | PEOPLE of the State of New York, Respondent, v. Louis FINKELSTEIN and Joseph Kleinberg, Defendants-Appellants. PEOPLE of the State of New York, Respondent, v. Nathan GOLDSTEIN, Defendant-Appellant. PEOPLE of the State of New York, Respondent, v. Louis SCHAEFFER, Defendant-Appellant. PEOPLE of the State of New York, Respondent, v. Herman H. SCHENKMAN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
E. Redfield, New York City, for defendants-appellants.
P. J. O'Connor, New York City, for respondent.
Before BOTEIN, P. J., and BREITEL, McNALLY and STEVENS, JJ.
Judgments of conviction unanimously affirmed. It is not clear that People v. Engel, 7 N.Y.2d 1002, 200 N.Y.S.2d 48, determined that Penal Law, § 1141 in its present form is unconstitutional. The decision is supportable by the absence in that case of any proof which would supply the element of scienter. In the absence of further clarification by the highest court of the State the statute may be construed to require scienter and thus satisfy the requirements laid down in Smith v. People of State of California (361 U.S. 147, 80 S.Ct. 215, 4 L.Ed. 205). People v. Shapiro, 6 A.D.2d 271, 177 N.Y.S.2d 670, is not dispositive of the question before this Court because the decision is not controlling in this Department and because the decision is not one in the highest court of the State (cf. Smith v. People of State of California, supra, 361 U.S. at page 149, 80 S.Ct. at page 216, esq. footnote 2). Assuming the validity of the statute the books in question come under its condemnation.
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