People v. Heller

Decision Date28 December 1973
Parties, 307 N.E.2d 805 The PEOPLE of the State of New York, Respondent, v. Saul HELLER, Appellant. The PEOPLE of the State of New York, Respondent, v. Jim BUCKLEY and Al Goldstein, Appellants.
CourtNew York Court of Appeals Court of Appeals

Irving Anolik, New York City, for appellant Saul heller.

Frank S. Hogan, Dist. Atty. (Lewis R. Friedman, Michael R. Juviler and Anthony J. Girese, New York City, of counsel), for respondent People.

Herbert S. Kassner, New York City, for New York State Civil Liberties Union and others, amici curiae, in the first action.

Herald Price Fahringer and Lawrence A. Schulz, Buffalo, for appellants Jim Buckley and Al Goldstein.

GABRIELLI, Judge.

Our major concern in the consideration of these cases is the constitutionality of certain of those sections of the Penal Law which deal with obscenity and pornography.

The appellants in each of these cases were convicted of misdemeanors because of their violations of section 235.05 of the Penal Law, which prohibits the promotion or production of obscene material. We have treated with the Heller case previously, deciding that the film 'Blue Movie' was obscene within section 235.00 of the Penal Law, the statute which defines the meaning of obscenity (People v. Heller, 29 N.Y.2d 319, 327 N.Y.S.2d 628, 277 N.E.2d 651). We also decided in that case that it was proper for a judicial officer authorized to issue warrants, who had viewed the film and found it obscene, to issue a valid warrant for the film's seizure as evidence in a prosecution against the exhibitor, without first conducting as adversary hearing on the issue of probable obscenity.

Heller was taken to the United States Supreme Court, and during its pendency that court handed down together five obscenity cases in which a revised obscenity test was adopted by a majority of five Justices (Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446; United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492).

Shortly following the decisions in those cases the Heller decision was handed down. Five Justices affirmed our determination of the procedural matter concerning the seizure of the film, but vacated our affirmance of defendant's conviction on instructions to reconsider the substantive issues in light of the lead cases, Miller and Paris Adult Theatre I, already referred to, redefining the limits of obscenity prosecutions (Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745). Four Justices considered section 235.00 'unconstitutionally overbroad' and therefore invalid on its face (p. 495, 93 S.Ct. 2789; and see Justice Douglas's separate dissent at 413 U.S., p. 494, 93 S.Ct. 2789).

The Buckley case is in this court for the first time. Defendants were convicted by a three-Judge Criminal Court panel for publishing and disseminating a tabloid type newspaper determined to be obscene entitled Screw (65 Misc.2d 917, 320 N.Y.S.2d 91). Defendants, publishers and editors of the tabloid, were found guilty on each of six counts and were fined $250 or 30 days imprisonment on each count. Appellate Term for the First Department unanimously affirmed without opinion (72 Misc.2d 549, 340 N.Y.S.2d 191) and leave to appeal to this court was granted. During the pendency of the Buckley case in this court the Supreme Court decided the afore-mentioned cases headed by Miller, and thus the merits of the prosecution against the Buckley defendants will also be considered in light of the Miller redefinition.

Our primary task is to determine the constitutionality of section 235.00 of the Penal Law in terms of whether it comports with the Miller decision and is sufficiently definite to satisfy the 'void-for-vagueness' test. The question whether obscenity is within the protection of the First Amendment to the United States Constitution, or whether it should or should not be so protected, is not in this case. The Supreme Court and this court have regularly and consistently held traffic in obscene materials to lie beyond the limits of First Amendment coverage (Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, Supra; Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312; United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; People v. Heller, 29 N.Y.2d 319, 327 N.Y.S.2d 628, 277 N.E.2d 651, Supra; People v. G.I. Distrs., 20 N.Y.2d 104, 281 N.Y.S.2d 795, 228 N.E.2d 787, cert. den.389 U.S. 905, 88 S.Ct. 218, 19 L.Ed.2d 219; People v. Richmond County News,9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681). As Chief Justice Burger said in the Paris Adult Theatre I case: 'The States, of course, may follow such a 'laissez faire' policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution Compels the States to do so with regard to matters falling within state jurisdication.' (413 U.S., at p. 64, 93 S.Ct., at p. 2639; emphasis as in original.) The fact is that the people of the State of New York, through their elected representatives have chosen to curb the commercial promotion and sale of obscene material, a perfectly valid exercise.

The second question is whether the published material falls within the statutory ban, a point already decided against the defendant by this court in Heller (29 N.Y.2d 319, 327 N.Y.S.2d 628, 277 N.E.2d 651, Supra).

I

It is necessary at this point to undertake an analysis of Chief Justice Burger's thesis as set forth primarily in the Miller and Paris Adult Theatre I cases. The Chief Justice first reviewed the key decisions leading to the established test for obscenity (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, Supra; Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1), that test being whether '(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' (set forth in the Memoirs case, 383 U.S., at p. 418, 86 S.Ct., at p. 977).

The third element of the test thus laid down in Memoirs represented a tightening of the Roth requirements in that the material had to be "unqualifiedly worthless" before it could be labeled obscene (383 U.S., at p. 419, 86 S.Ct. 975), thus putting a burden on the prosecutor to prove the absence of any social value, a burden, said Chief Justice Burger in Miller, 'virtually impossible to discharge under our criminal standards of proof' (413 U.S., at p. 22, 93 S.Ct., at p. 2613). Since no adherents to the 'utterly without redeeming social value' element of the Roth-Memoirs test remain on that court, that element was simply abandoned in Miller and a new test was formulated, to wit: 'The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest * * * (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.' 1 (413 U.S., at p. 24, 93 S.Ct., at p. 2615).

Comparing this new test to the old test we find element '(a)' substantially the same, i.e., the dominant theme must appeal to the prurient interest. The insertion of the average man into this element, and his application of contemporary community standards, does not represent any significant practical departure from the previous test, a point later discussed.

Element '(b)' for the new test presents no practical change whatsoever. That the offensive sexual material should be specifically defined by State statute in order to be prosecutable could well have been a point left unstated since adequate definition is essential to any criminal statute.

Element '(c)' of the new test does effect a change, of course. In place of the 'utterly without redeeming social value' test, the court has substituted much looser criteria. Now, the prosecutor need not prove the material 'unqualifiedly worthless'. It will be sufficient to show that because of the predominant emphasis on the subject matter described elements '(a)' and '(b)', the material, whether purportedly literary, artistic, political, or scientific, cannot be taken seriously as falling into any of those categories. To put an assessment of this test another way, the effectuation of a pretense as a serious work will not save the material from being found obscene if, in fact, it is dominated by patently offensive sexual material clearly geared for a market made up of those who would have no use for it other than to satisfy their lewd, lascivious or morbid desires and cravings.

Chief Justice Burger goes on in Miller to state that:

'If a state law that regulates obscene material is thus limited (in accord with the new test above recounted), as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. * * *

'We emphasize that it is not our function to purpose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under the second part (b) of the...

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