People v. Godek

• Citation: 113 Misc.2d 599,449 N.Y.S.2d 428
• Parties: The PEOPLE of the State of New York v. Philip M. GODEK, Defendant.
• Decision Date: 14 April 1982
• Court: United States State Supreme Court (New York)

Page 428

449 N.Y.S.2d 428

113 Misc.2d 599

The PEOPLE of the State of New York v. Philip M. GODEK, Defendant.

Supreme Court, Criminal Term,

Suffolk County, Part II.

April 14, 1982.

Patrick Henry, Dist. Atty. of Suffolk County by Raymond Jermyn, Asst. Dist. Atty., Hauppauge, for the People.

John F. Middlemiss, Jr., Legal Aid Society by John N. Lardiner, Hauppauge, for defendant.

MEMORANDUM

JOSEPH JASPAN, Justice.

The indictment charges defendant with 18 separate counts of Promoting an Obscene Sexual Performance by a Child (P.L. 263.10).

In a memorandum decision dated January 28, 1982, Co.Ct., 112 Misc.2d 512, 447 N.Y.S.2d 214, this court held, inter alia, that the statute was constitutional.

After a substitution of counsel the defendant, under the guise of a motion to reargue, sought to controvert an underlying warrant as merely justifying a prior non-judicial determination to seize allegedly obscene material and also challenged the validity of the charge to the grand jury.

To the extent that the defendant raised the constitutional issue of search and seizure, the motion to reargue was granted with the ultimate determination to be based upon facts presented at a non-jury trial. The defendant also moves to consolidate all 18 counts into one charge.

Findings of Fact

In an effort to detect and stop the import of pornographic material into the United States, the United States Customs Service responds under pseudonyms to ads in various journals soliciting "members" with common interests in sexually explicit material.

As a result United States Custom Inspector Martin Locker received a reply from the defendant directed to him at a post office box in which Mr. Godek wrote in part:

"Your name was referred to me by a service in New York as someone who might have similar interests. That is an interest in boys 12 to 15"

and suggested a meeting "to exchange magazines, films and/or experiences."

After additional correspondence a meeting was arranged between Inspector Locker and the defendant at a shopping center in Hicksville.

At that meeting Godek asked Locker if he would be interested in seeing what he had available. After receiving an affirmative response, they went to defendant's 1975 Pontiac and there looked at about 15 magazines and a catalogue of films all involving child pornography and particularly homosexual conduct between young boys.

Arrangements were made for another meeting at the Holiday Inn in Hauppauge on October 19, 1981 at which time they were to exhibit to each other the material they had. Defendant agreed to talk about the selling of his materials.

The Customs Inspector with the aid of the District Attorney rented the room and wired it so that any conversation could be recorded.

Defendant arrived at the motel room with a bag of material, a camera and a projector. He displayed some of the magazines and offered to exhibit one of the films. When he started to put one of the films on the projector he was arrested.

The tape included conversation about the subject matter of the magazines and films, contained inconclusive language about selling the material and such statements by defendant as

"well I have mostly only boys though... Here's the ones I brought in the city (inaudible). These are all guys (inaudible) from the city."

The source of the material was stated by the defendant to be the United States as well as foreign.

At the time of defendant's arrest the police seized 11 films and 41 magazines all conceded by the defense to be obscene and to involve boys under the age of 16. This court has examined the magazines and viewed the films and indeed found them to consist of obscene sexual performances as defined in Penal Law Section 263.00 (subd. 2) by children under the age of 16.

Within three hours after the arrest of the defendant the magazines and films seized in the motel room were taken to a Judge of the District Court of Suffolk County who viewed them and concluded in the early morning hours of October 20, 1981 that they:

"depicted explicit acts of deviate sexual intercourse between males less than sixteen (16) years old, acts of fellatio between males less than sixteen (16) years old, and acts of lewd exhibition of genitals by males less than sixteen (16) years old"

and that when considered as a whole they appeal to prurient interests in sex and are patently offensive to prevailing standards in the adult community. A search warrant authorizing their seizure was signed.

The Judge also authorized the police to search defendant's home and car for "copies" of obscene films and magazines enumerated on an attached schedule.

The latter search of the vehicle uncovered 11 other magazines which were brought back to the Judge on October 21, 1981 who made the same findings referred to above, a finding concurred in by this court.

The defendant testified at the trial and acknowledged his interest in the material which he described as "for his own private use". He admitted, however, that he might possibly have exchanged the magazines and films.

Conclusions of Law

Search and Seizure--Prior Judicial Restraint

Defendant challenges the legality of the seizure of the items taken from the motel room and the subsequent search and seizure of his car.

If the motion were limited to issues of search and seizure, this court would rule that (1) defendant did not have standing to challenge the seizure of material he brought into and displayed or offered to display to others in a motel room rented by the District Attorney (United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619); (2) in any event, the seizure in the motel room was an incident to a lawful arrest based upon probable cause; and (3) that the application for the search of the automobile was amply justified by the known facts as set forth in the supporting affidavit. These documents should not be read in a hypertechnical sense (People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677, 330 N.E.2d 631) so that a request to search for copies of pornographic material did not preclude discovery of obscene magazines which did not duplicate those already in the possession of the police. The magazines found were in plain view (Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564).

But the issue is more complex involving as it does the interplay of the First and Fourth Amendments and a general requirement of prior judicial scrutiny precluding a determination by the police alone as to what is obscene.

In Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757, the question presented was whether the seizure of alleged obscene material contemporaneous with and as an incident to an arrest for the public exhibition of such material in a commercial theatre may be accomplished without a warrant.

The Court noted its prior decisions in Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, and A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809, which held that a warrant for the seizure of allegedly obscene books could not be issued on the conclusory opinion of a police officer that the books sought to be seized were obscene, without prior judicial scrutiny.

However, the Roaden Court further wrote that a common thread was to be found in these cases and in Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313, which related to the nature of the materials seized and the setting in which they were taken.

It wrote at page 504, 93 S.Ct. at page 2801 "In each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition. Seizing a film then being exhibited to the general public presents essentially the same restraint on expression as the seizure of all the books in a bookstore. Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards. The seizure is unreasonable, not simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness. The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is 'unreasonable' in the light of the values of freedom of expression."

While holding that the Bill of Rights was fashioned to restrict seizure which could also be an instrument for stifling liberty of expression, it wrote significantly at page 505, 93 S.Ct. at page 2801:

"Where there are exigent circumstances in which police action literally must be 'now or never' to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation."

In United States v. Cangiano, 491 F.2d 906, the 2nd Circuit declined to expand Roaden to hold that the warrantless seizure of magazines and films were per se unreasonable.

The defendants there conceded, as the defendant here concedes, that the materials seized were obscene. The defendants were engaged in an underground operation in hardcore pornography with clandestine storage facilities not intended to be available to the public but only to trusted customers. The Court ruled that since the seizure was not there made for the purpose of destruction nor for the purpose of blocking the public from viewing commercial films or reading or purchasing books openly displayed but to preserve evidence, there was no violation of First or Fourth Amendment rights.

There is no requirement that an adversary proceeding take place before an initial seizure--only that a judicial determination must occur promptly so that administrative delay does not in itself become...