People v. Illardo

• Decision Date: 27 November 1979
• Citation: 48 N.Y.2d 408,423 N.Y.S.2d 470,399 N.E.2d 59
• Parties: , 399 N.E.2d 59 The PEOPLE of the State of New York, Respondent, v. Joseph ILLARDO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 470

423 N.Y.S.2d 470

48 N.Y.2d 408, 399 N.E.2d 59

The PEOPLE of the State of New York, Respondent, v. Joseph ILLARDO, Appellant.

Court of Appeals of New York.

Nov. 27, 1979.

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

Edward C. Cosgrove, Dist. Atty. (John J. De Franks and Judith Blake Manzella, Asst. Dist. Attys., of counsel), for respondent.

Robert Abrams, Atty. Gen. (Shirley Adelson Siegel, Asst. Atty. Gen., New York City, and John J. Warner, Jr., Asst. Atty. Gen., Albany, of counsel), in his statutory capacity under section 71 of the Executive Law.

OPINION OF THE COURT

FUCHSBERG, Judge.

We uphold in this case the affirmative defense provisions of the New York obscenity statute (Penal Law, § 235.15, subds. 1, 2) against a constitutional attack brought on the grounds of due process and equal protection.

Appellant Joseph Illardo was charged in an information with the knowing promotion of obscene material for selling a magazine entitled Puritan to a plainclothes police officer (Penal Law, § 235.05, subd. 1). ¹ As a result of preliminary judicial screening, it was determined that the magazine in fact was obscene within the meaning of section 235.00, a finding appellant does not contest for the purpose of his assault on the accusatory instrument. Instead, in moving to dismiss the information he relies on the contention that the affirmative defense provisions of section 235.15 are constitutionally infirm and that, because these provisions could not be severed from the remainder of the statute, the defect renders the proscription in section 235.05 invalid as well. ² In passing we also note that, at least at this stage, defendant has mounted no such attack against the rest of the statute and we therefore have no occasion to deal with it here.

The motion to dismiss was granted by the Buffalo City Court, which declared both subsections unconstitutional. On the People's appeal to the Erie County Court, the order was reversed on the law. This appeal, in turn, is now here by reason of a grant of leave by a Judge of this court pursuant to CPL 460.20. For the reasons which follow, we believe the information should be upheld.

Turning at once to the challenged statute itself, subdivision 1 of section 235.15 provides that it is an affirmative defense if the "allegedly obscene material was disseminated * * * (to) persons or institutions having scientific, educational, governmental or other similar justification for possessing or viewing the same." Appellant's claim is that each of the adjectives, "scientific", "educational" and "governmental", and, especially, the phrase "other similar justification" are so imprecise as to render this section void for vagueness. With respect to subdivision 2 of section 235.15 of the Penal Law, which affords another affirmative defense to certain nonmanagerial employees of motion picture theatres, appellant argues the exclusion of bookstore employees like himself violates equal protection.

Mindful of the presumption of constitutionality overlaying duly enacted statutes (People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205), we first address the contention that subdivision 1 violates due process by " 'fail(ing) to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden' " (Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989). Indeed, the constitutional requisite that a statute be "informative on its face" (People v. Firth, 3 N.Y.2d 472, 474, 168 N.Y.S.2d 949, 950, 146 N.E.2d 682, 683) serves not only to assure that citizens can conform their conduct to the dictates of law but, equally important, to guide those who must administer the law (see People v. Berck, 32 N.Y.2d 567, 569-570, 347 N.Y.S.2d 33, 35-36, 300 N.E.2d 411, 412-413; Smith v. Goguen, 415 U.S. 566, 572-575, 94 S.Ct. 1242, 39 L.Ed.2d 605; Interstate Circuit v. Dallas, 390 U.S. 676, 689, 88 S.Ct. 1298, 20 L.Ed.2d 225). As common sense and experience both tell us, unless by its terms a law is clear and positive, it leaves virtually unfettered discretion in the hands of law enforcement officials and thereby may encourage arbitrary and discriminatory administration.

However, the quest for definiteness does not preclude the Legislature from using ordinary terms to express ideas that find adequate interpretation in everyday usage and understanding (People v. Byron, 17 N.Y.2d 64, 67, 268 N.Y.S.2d 24, 26, 215 N.E.2d 345, 347; see People v. Cruz, 48 N.Y.2d 419, --- N.Y.S.2d ----, --- N.E.2d ----). For, "Condemned to the use of words, we can never expect mathematical certainty from our language" (Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (Marshall, J.)). Recognizing reality, the Constitution therefore does not require impossible standards; it is enough that the language used " 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices' " (Miller v. California, 413 U.S. 15, 27-28, n. 10, 93 S.Ct. 2607, 2617, n. 10, 37 L.Ed.2d 419, quoting Roth v. United States, 354 U.S. 476, 491-492, 77 S.Ct. 1304, 1 L.Ed.2d 1498; see Trio Distr. Corp. v. City of Albany, 2 N.Y.2d 690, 696, 163 N.Y.S.2d 585, 589, 143 N.E.2d 329, 332).

Saying so, we nevertheless appreciate that, where First Amendment rights are involved, to forestall the possibility of inhibiting the exercise of free speech, a statute's imprecision may not be lightly overlooked (Grayned v. City of Rockford, supra, 408 U.S. at p. 109, 92 S.Ct. 2294). But, it is now established doctrine that obscene matter falls outside the scope of the First Amendment (Roth v. United States, supra ), and thus the amendment plays at best a peripheral role in the scrutiny of the statute, prohibiting as it does the promotion of the material it describes. And, where the statute deals not with a proscription itself but, instead, with affirmative defenses statutory provisions which become relevant only after an arrest is made and charges are filed, any uncertainty in its terms is far less likely to be an inducement to irresponsible law enforcement.

Against this background, we proceed to examine subdivision 1 of section 235.15 in detail. The language of the section, we note, is taken almost verbatim from the Model Penal Code (§ 251.4, subd. 3), the drafting of which was neither hasty nor unskilled. As far as the words "scientific", "educational" and "governmental" are concerned, surely these are within the compass of the ordinary citizen. While their exact definition may vary with the lexicon consulted, through daily usage the words have acquired a definite import. In this respect, these may be expressions of which it can be said that their explication proves far more troublesome than each of the words standing alone; to the "man in the street" they may evoke a reliable, if visceral, response (see Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 ("I know it when I see it", Stewart, J.)). So, avoiding a mere stringing of synonyms, we prefer to await the results of judicial construction of these words after exploration in plenary proceedings (see, e. g., Matter of Swedenborg Foundation v. Lewisohn, 40 N.Y.2d 87, 94, 386 N.Y.S.2d 54, 58, 351 N.E.2d 702, 706 (interpreting "educational" within the Real Property Tax Law (§ 421, subd. 1) to refer to "the development of faculties and powers and the expansion of knowledge by teaching, instruction or schooling")).

For our purposes here it suffices to examine these words in juxtaposition with some analogous terms that appear in the definition of obscenity itself. As formulated in Miller v. California (413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 Supra ) and subsequently by our Legislature in section 235.00 (subd. 1, par. (c)) of the Penal Law, obscene material, Inter alia, must be said to lack "serious literary, artistic, political or scientific value". ³ Patently, the term "scientific", therefore, cannot be said to be so vague in meaning as to deny due process. Nor are the terms "literary", "artistic" and "political" any more or less precise than the words "governmental" and "educational" in subdivision 1 of section 235.15. Rather, if anything, the wording of the obscenity test would seem on its face to introduce yet another subjective element be prefacing the terms with the qualifier "serious". Nevertheless, though there may be imaginable instances in which some difficulty in determining on which side of the line a particular fact situation falls, this alone does not render the statute's language impermissibly vague (see Miller v. California, 413 U.S. at pp. 27-28, 93 S.Ct. 2607, Supra; People v. Heller, 33 N.Y.2d 314, 329, 352 N.Y.S.2d 601, 613, 307 N.E.2d 805, 813); the reasoning is certainly no less applicable when the language defines not a criminal offense but an affirmative defense.

However, as indicated, the statute does not stop after reciting the possibilities that the purchaser of obscene material may have a "scientific, educational (or) governmental" justification. It goes on to permit the affirmative defense in circumstances presenting "other similar justification", a phrase which appellant labels "irredeemably vague". But, in our view the phrase obviously represents no more than a common drafting technique designed to save the Legislature from spelling out in advance every contingency in which the statute could apply (see People v. Klose, 18 N.Y.2d 141, 145, 272 N.Y.S.2d 352, 354, 219 N.E.2d 180, 181). For, when foreseeable circumstances are too numerous or varied for...