People v. Illardo

• Decision Date: 15 November 1978
• Citation: 97 Misc.2d 294,411 N.Y.S.2d 142
• Court: New York County Court
• Parties: The PEOPLE of the State of New York v. Joseph ILLARDO & Willie Fare, Respondents.

Page 142

411 N.Y.S.2d 142

97 Misc.2d 294

The PEOPLE of the State of New York v. Joseph ILLARDO & Willie Fare, Respondents.

Erie County Court.

Nov. 15, 1978.

Edward C. Cosgrove, Dist. Atty. of Erie County by Judith Blake Manzella, Asst. Dist. Atty., for the People.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo (Paul J. Cambria, Jr., Buffalo, of counsel), for respondent Joseph Illardo.

Boreanaz, NeMoyer & Baker, Buffalo (Patrick J. Baker, Buffalo, of counsel), for respondent Willie Fare.

MEMORANDUM AND ORDER

JOSEPH P. McCARTHY, Judge.

These defendants were charged in the City Court of Buffalo under separate informations with Obscenity in the Second Degree in violation of Section 235.05 of the Penal Law. Respondent Illardo was charged specifically with promoting obscene material by selling a magazine entitled "Puritan" to one John T. Dugan on May 2, 1978. Respondent Fare was charged specifically with promoting obscene material by selling a magazine entitled "Sexual Freedom Now" to John T. Dugan, Jr. On April 20, 1978. Both magazines had been judicially screened and preliminarily determined to be obscene (Penal Law 235.00). Respondents moved below, pursuant to CPL 170.30(a) and CPL 170.35(c) that the informations be dismissed on the grounds that Penal Law 235.05, the proscriptive statute, and Penal Law 235.15, the statute which provides for affirmative defenses for certain persons charged under the proscriptive statute, when read together, are unconstitutional. The Court below declared both the statutes unconstitutional on the authority of People v. Howell, 90 Misc.2d 722, 395 N.Y.S.2d 933, and granted the motions to dismiss. The People now appeal.

Section 235.15(1) of the Penal Law provides as follows: ¹

1. In any prosecution for obscenity, it is an affirmative defense that the persons to whom allegedly obscene material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational, governmental or other similar justification for possessing or viewing the same.

The first question to be answered on this appeal is whether these respondents had the standing to make the motion below, their cases not having proceeded to trial, and respondents, therefore, not having reached the point of asserting any affirmative defenses, if such they have. It seems elementary that when a person is charged with a crime and that there is statutory provision for affirmative defenses with respect to the crime charged, a person is as equally entitled to be properly informed of any possible affirmative defenses as he is to be properly informed of the elements of the crime with which he is charged. Without belaboring this basic concept, I find that these defendants did have the standing to contest the constitutionality of the pertinent statutes by motion in the Court below.

To get to the merits of the matter before us, all of respondents' contentions with respect to Section 235.15(1) are based on the premise that the statute is so vague that men of common intelligence must be forced to guess at its meaning and well could differ as to its application and, therefore, it fails to meet the requirement of due process. Cf. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605; Papachristou v. City of Jacksonville,405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989. I find no such fatal vagueness. It is obvious that in enacting the section, the legislature recognized that certain persons and institutions have legitimate and even socially desirable reasons for viewing or possessing obscene materials. These are categorized in the statute as those having (1) scientific, (2) educational, (3) governmental, and (4) other similar reasons for such possessing or reviewing. The words, "scientific," "educational," and "governmental," have well-understood and widely-recognized general meanings and I feel that the average Court or jury would not experience serious difficulty in determining whether a particular affirmative defense interposed by a defendant at trial would fit within one or the other of these three categories. Terms that are broad are not necessarily constitutionally vague. Consider the statutory definition of "obscene material." Section 235.00(1)(c) of the Penal Law lists as one of the elements necessary to make any material or performance obscene that "considered as a whole, it lacks serious Literary, artistic, political, and Scientific value." (Emphasis mine.) These words are taken verbatim as one of the tests to determine obscenity from the decision of the Supreme Court of the United States in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. (Also Cf. People v. Heller, 33 N.Y.2d 314, 352 N.Y.S.2d 601, 307 N.E.2d 805). Certainly the word, "scientific is no more definitive and no less vague in Section 235.00(1)(c) than it is in Section 235.15(1). Nor can it logically be argued that the words "literary," "artistic," and "political" all pass constitutional muster, while the words, "educational" and "governmental" do not. Without belaboring the point I do not find the words, "scientific" "educational" and "governmental" as contained in the statute to be so vague as to violate the due process clause.

We now turn to the phrase, "other similar justification," as contained in Section 235.15(1). As stated above the legislature recognizes certain legitimate and valid reasons for possession of obscene materials by a limited segment of the population. It has provided that anyone accused of selling such matter to such persons or institutions should be afforded the opportunity to put forward the selective character of the vendee as an affirmative defense. The legislature chooses not to limit the selective persons or groups to those having "scientific," "educational," and "governmental" justification, but also recognizes the possibility that there may be justifiable reasons for the possession or viewing of obscene materials other than those within the three general categories specifically enumerated. In using the term, "other similar justification," the legislature does not lead a defendant down a blind alley where he cannot see or determine whether he has a right to propound an affirmative defense. Rather, by legislative indulgence, it opens another area in which a defendant in a particular case well might assert that the person or institution to whom he had disseminated obscene material was one whose possession of the material would be as legitimate and as socially desirable as those listed under the three enumerated categories. I do not find the phrase, "other similar justification," when considered in this context as constitutionally vague.

It follows from the above that Section 235.15(1) does not violate the due process clause and therefore is not unconstitutional.

We now turn to the constitutional issue presented with respect to Section 235.15(2) of the Penal Law which provides affirmative defenses to certain employees of motion picture theatres who are charged with violations of the obscenity laws. Although raised and argued below it is obvious that the Court below did not consider this issue in arriving at its decision, but I feel it is proper that they be dealt with here.

Section 235.15(2) provides as follows:

"In any prosecution for obscenity, it is an affirmative defense that the person so charged was a motion picture projectionist, stage employee or spotlight operator, cashier, doorman, usher, candy stand attendant, porter or in any other non-managerial or non-supervisory capacity in a motion picture theatre; provided he has no financial interest, other than his employment, which employment does not encompass compensation based upon any proportion of the gross receipts, in the promotion of obscene material for sale, rental or exhibition or in the promotion, presentation or direction of any obscene performance, or is...