People v. Howell

• Decision Date: 13 June 1977
• Citation: 90 Misc.2d 722,395 N.Y.S.2d 933
• Parties: , 3 Media L. Rep. 1146 The PEOPLE of the State of New York v. Gary HOWELL and Yellowstone Distributing Inc.
• Court: New York City Court

Page 933

395 N.Y.S.2d 933

90 Misc.2d 722, 3 Media L. Rep. 1146

The PEOPLE of the State of New York v. Gary HOWELL and Yellowstone Distributing Inc.

City Court of Buffalo.

June 13, 1977.

Edward C. Cosgrove, Erie County Dist. Atty. by Robert J. Bolm, Asst. Dist. Atty., Buffalo, for the People.

David Gerald Jay, Buffalo, for defendants.

CARMELO A. PARLATO, Judge.

Defendants herein have, after trial before this court without a jury, been found guilty as charged, i. e., each with having twice violated Penal Law Section 235.05-1, promoting obscenity in the 2nd degree. They now have moved, before sentence, pursuant to CPL Sec. 330.30-1, for a setting aside of the verdicts and dismissal of the informations herein, on the ground that said Penal Law Sec. 235.05-1 is, in conjunction with Sec. 235.15-1, unconstitutional.

The first question which arises is the procedural propriety of considering such motion at this stage of proceedings.

Before trial the defendants had timely moved against the informations herein, on the ground of unconstitutionality of the statute, (per CPL Sec. 170.35-1 (c) ). The focus of such motion, and thusly of my previous decision herein denying such motion, had been on the definition of obscenity in Penal Law Sec. 235.00-1, and the 1st Amendment of the U. S. Constitution. The instant motion attacks the statute as so vague as to violate the due process clause of the 14th Amendment, the source of the vagueness being not the section (235.05-2) stating the offense, but rather Sec. 235.15-1, providing for an affirmative defense.

The defendants also raised previously the question of constitutionality of Sec. 235.15-1, although indirectly, before trial, by their furnishing to this court the opinion of the District Court, Suffolk County, in People v. Wrench (1975), 83 Misc.2d 95, 371 N.Y.S.2d 833, wherein that court considered the potential for Sec. 235.15-1 being violative of the 14th Amendment (although the equal protection clause rather than the due process clause). The direct purpose advanced by their pre-trial citing of said People v. Wrench was that this court might give to said Sec. 235.15-1 the same interpretation as did the Wrench court, an interpretation which was considered by that court as sufficient to preserve the constitutionality of said section.

Since the defendants thusly did previously raise the question of constitutionality, this court is of the opinion that they should not be foreclosed from making their said motion at this stage, pursuant to CPL Sec. 330.30-1, and has thusly entertained such motion.

The evidence at trial was relatively undisputed: that on June 13 and 17, 1975, the defendant Gary Howell was in charge of a store owned by defendant Yellowstone Distributing Co., Inc., in the City of Buffalo, wherein allegedly obscene magazines were offered for sale to the general public, except that, by various signs posted inside and outside the store and by personal inquiry made by defendant Howell, the defendants attempted to limit dissemination to adults. At the close of the evidence, defense counsel, in his summation, argued that the defendants had established an affirmative defense under Sec. 235.15-1, by proof that the sale of the allegedly obscene material was exclusively to adults, citing People v. Wrench, supra, wherein the court had held that such an affirmative defense was properly derived from said Sec. 235.15-1.

In this court's deliberations before rendering its aforesaid verdicts, it recognized that if it failed to construe said Sec. 235.15-1 in the same fashion as had the Wrench court, it would possibly arrive at the conclusion that Sec. 235.15-1 is so vague as to be unconstitutional. Before rendering its verdict, this court therefore gave counsel the opportunity to argue, on the same occasion, both the merits of the claimed affirmative defense and the merits of this anticipated post-verdict motion to vacate a verdict of guilty, should there be such verdict.

The first decision made by this court was at the verdict stage, i. e., that said Sec. 235.15-1 is not fairly interpreted to provide the affirmative defense so gleaned by the Wrench court; that the prosecution having proved its cases against the defendants, and the defendants not having established any valid affirmative defense, the proper verdict must be one of guilty on all charges. Upon the rendering of such verdicts, defendants made the anticipated post-verdict motion, now to be decided.

Penal Law Section 235.05-1 provides that "A person is guilty of obscenity in the second degree when, knowing its content and character, he * * * Promotes, or possesses with intent to promote, any obscene material. * * *"

Section 235.15-1 provides (deleting the words by which it applies to other than 235.05-1): "Obscenity; defense. * * * In any prosecution for obscenity, it is an affirmative defense that the persons to whom allegedly obscene material was disseminated * * * consisted of persons * * * having scientific, educational, governmental or other similar justification for possessing * * * the same."

This court does not (as did the Wrench Court) view Sec. 235.15-1 as presenting a problem of equal protection of the laws, since such equal protection is guaranteed to persons rather than to activities. This section does not make classifications as to those doing the disseminating but as to those to whom the disseminating is done, which is thusly a way of describing the prohibited activity. The problem is, rather, whether the section makes that description clearly enough.

It is well settled that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322; Trio Distributors Corporation et al. v. City of Albany, et al., 2 N.Y.2d 690, 163 N.Y.S.2d 585, 143 N.E.2d 329. Even where we might guess at what the draftsman intended and even where there is material available to show what was intended, that is not sufficient. "For validity the statute must be informative on its face." People v. Firth, 3 N.Y.2d 472, 474, 168 N.Y.S.2d 949, 951, 146 N.E.2d 682, 684.

Whether the vagueness is in one statutory section proscribing certain conduct (here Sec. 235.05-1) or in a different section stating exceptions to that proscription (here Sec. 235.15-1) is a matter of form and should not deter the court from recognizing the substantive constitutional deficiency, if such exists, in the statute seen as a whole. See People v. Abrahams, 40 N.Y.2d 277, 386 N.Y.S.2d 661, 353 N.E.2d 574.

The difficulty with Sec. 235.15-1 is not in understanding its skeleton intent: the legislature, while not proscribing simple possession of obscene material (whatever the possessor's purpose might be, so long as it is not "with intent to promote",...