People v. Kirkpatrick

Decision Date15 March 1973
Citation295 N.E.2d 753,32 N.Y.2d 17,343 N.Y.S.2d 70
Parties, 295 N.E.2d 753 The PEOPLE of the State of New York, Respondent, v. Charles KIRKPATRICK and Peter Dargis, Appellants, and Peter Martin et al., Defendants.
CourtNew York Court of Appeals Court of Appeals

Robert P. Levine, New York City, for appellants.

Frank S. Hogan, Dist. Atty. (Harold Roland Shapiro, New York City, of counsel), for respondent.

Horace S. Manges and Marshall C. Berger, New York City, for Association of American Publishers, Inc., Amicus curiae.

Paul G. Chevigny, New York City, for New York Civil Liberties Union, Amicus curiae.


A so-called adult comic magazine called Zap No. 4 has been found obscene and for its sale two booksellers in separate cases tried together have been convicted of a violation of section 235.05 of the Penal Law, Consol.Laws, c. 40. Each of the defendants was fined $500 and if the fine was not paid to serve 90 days in jail. The fines were paid. The Appellate Term affirmed, 69 Misc.2d 212, 329 N.Y.S.2d 769, and defendants appeal by leave of an Associate Judge of this court.

The fact of obscenity need not be dwelt upon at this time. Most of this court agree with the courts below that the material sold was obscene, and its nature was discussed by the trial court in its elaborate opinion determining the case. What remains at issue, with disagreement in this court, is whether the record contained sufficient evidence to establish that the booksellers knew of the obscene contents and by way of alternative Ratio decidendi whether the statutory presumption that a seller of obscene materials knows the contents of what he sells is valid (Penal Law, § 235.10, subd. 1).

The trial court both found actual knowledge and applied the statutory presumption. After having completed in its opinion its treatment of the statutory presumption it detailed the testimony of the booksellers in which they admitted personally selling many copies of the magazine. It also noted that each defendant had ordered and reordered the magazine when a new issue came out or on exhaustion of the current supply. It wrote: 'Such facts are similar to those presented in People v. Weingarten, 50 Misc.2d 635, 640, 271 N.Y.S.2d 158, 164; aff'd, 55 Misc.2d 681, 286 N.Y.S.2d 429, reversed on other grounds 25 N.Y.2d 639, 306 N.Y.S.2d 17, 254 N.E.2d 232 and where held there, as I hold the stated facts here, to constitute sufficient knowledge by the defendants, Dargis and Kirkpatrick, of the contents and character of Zap No. 4, although they may have never read through it.' (64 Misc.2d 1055, 1071, 316 N.Y.S.2d 37, 54.) Assuming that one may fail to read the sentence in question as conveying the meaning suggested here, reference to the Weingarten case, cited by the trial court, negates any straining at ambiguity. The Weingarten case involved no presumption and the trial court there weighed the evidence to reach the inference of Scienter.

The trial court's problem was of course to decide the motion to dismiss and to rule on the entire case. Hence, the recourse to discussion both of the presumption and the inference of fact. The presumption justified denial of the motion to dismiss even as of the time of its making. The inference of fact, regardless of the presumption, but supportive of it in a sense, justified the finding of guilt on the whole case. Thus, the trial court's resort to alternative Rationes decidendi.

Of course, as will be noted shortly, the inference of Scienter from possession alone of contraband would have sufficed to deny the motion to dismiss at the close of the People's case. Certainly, the trial court chose not to make the inference of Scienter on the People's case and that omission may not be supplied on appeal. With equal certainty however it made the inference of fact in evaluating the whole case.

Most, if not all, of the evidence relating to the defendants' knowledge was introduced by them after the court reserved decision on their motions to dismiss at the close of the People's case. However, it is settled that a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People's case, proceeds with the risk that he will inadvertently supply a deficiency in the People's case. (See People v. Farina, 290 N.Y. 272, 274, 49 N.E.2d 134, 135; People v. Corbisiero, 290 N.Y. 191, 193, 48 N.E.2d 481; People v. Trotta, 30 A.D.2d 562, 563, 391 N.Y.S.2d 185, 187; McGautha v. California, 402 U.S. 183, 215--216, 91 S.Ct. 1454, 28 L.Ed.2d 711; United States v. Calderon, 348 U.S. 160, 164, n. 1, 75 S.Ct. 186, 99 L.Ed. 202; United States v. Maffei, 450 F.2d 928, 930 (6th Cir.), cert. den. 406 U.S. 938, 92 S.Ct. 1789, 32 L.Ed.2d 138; United States v. Rosengarten, 357 F.2d 263, 266 (2d Cir.); United States v. Haskell, 327 F.2d 281, 282, n. 2 (2d Cir.); United States v. Carabbia, 381 F.2d 133, 138 (6th Cir.); United States v. Greene, 442 F.2d 1285, 1286--1287, n. 3 (10th Cir.); but see United States v. Rizzo, 416 F.2d 734, 736, n. 3 (7th Cir.); Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893.)

Earlier, while still discussing the statutory presumption, and to establish that the presumption had not been rebutted, the trial court pointed out that with its conspicuous display the magazine stood out 'like a sore thumb' from the other publications handled by the booksellers.

It is evident then that the trial court found Scienter both by reason of the statutory presumption not having been rebutted and by its own inference of the fact of knowledge from the evidence. Since the attack on the validity of the presumption rests in part on the probabilities of knowledge by the booksellers of what kind of material they were selling, it necessarily follows that the probabilities supporting the validity of the presumption, the failure to rebut it successfully, and the inference of knowledge overlap. The conviction should be affirmed on either view of the case.

Defendant Dargis was the manager and sole employee making purchases for a bookshop in which the magazine was sold. In particular, he ordered and reordered the magazine, personally unpacking copies and positioning them on the shelves. He sold 20 to 25 copies himself, and admitted saying to customers that he 'was surprised to see that a comic book sold so well.' He also admitted he had glanced at 'the ending pages' of Zap No. 4, and had looked at the garish cover with the legend 'Adults Only'. Defendant Kirkpatrick was the comanager of his bookshop in which the magazine was also sold. He did the ordering and reordering of various issues of Zap, including the ordering of 150 copies of Zap No. 4. He admitted personally having sold 25 to 30 copies of Zap No. 4. The characteristic drawings of the magazine are largely of the same kind from the first page to the last, so that any sampling would have been illustrative of the bulk. It is undisputed that each of the bookshops was a purveyor of large quantities of legitimate publications, kept in stock in the many thousands, with a wide range of serious literature, fiction and periodicals.

Because it is the simpler of the two issues, the first to be discussed is the permissible inference in a criminal case that one in possession of contraband knows the contraband nature of his possession.

The principle was most recently discussed by this court in People v. Reisman, 29 N.Y.2d 278, 327 N.Y.S.2d 342, 277 N.E.2d 396. Treating of the possession of a large commercial quantity of marijuana picked up as a shipment at an air terminal by the defendant and consigned to his care, it was said: 'The crime of possessing dangerous drugs requires a physical or constructive possession with actual knowledge of the nature of the possessed substance (Penal Law, §§ 220.05--220.20). Knowledge, of course, may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred (see, E.g., People v. Groom, 60 Cal.2d 694, 696, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Embry, 20 Ill.2d 331, 332, 169 N.E.2d 767; 72 C.J.S., Poisons, § 7, subd. c., par. (2)). Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises (e.g., 2 Wigmore, Evidence (3d ed.), §§ 244--245, 260; cf. Kuchlik v. Feuer, 239 App.Div. 338, 339, 267 N.Y.S. 256, 257). This, of course, is an elemental inference based on common experience and all but universal probabilities. Thus it is an ancient rule of inference of rebuttable presumption of fact that the recent and exclusive possession of the fruits of any crime warrants the inference of guilt, including, when material, knowledgeable possession (Wigmore, op. cit., Supra, vol. 1, § 152, vol. 9, § 2513; Richardson, Evidence (9th ed.), § 88 and cases cited). In the case of contraband its possession is a crime per se, and hence the inference of guilt, that is, knowledgeable possession, is as strong as is the case for instance, with stolen goods (e.g., People v. Roman, 12 N.Y.2d 220, 222, 238 N.Y.S.2d 665, 188 N.E.2d 904; People v. Berger, 260 App.Div. 687, 689--690, 23 N.Y.S.2d 739, 740--741, affd. 285 N.Y. 811, 35 N.E.2d 197; Wigmore, op. cit., Supra, § 152; Richardson, loc. cit., Supra).' (29 N.Y.2d, at pp. 285--286, 327 N.Y.S.2d, at pp. 348--349, 277 N.E.2d, at pp. 399--400.)

Needless to say, the inference of knowledge rests on the probabilities of human transactions. It is rare that one does not know what one possesses. Since the inference of knowledge is but that, the burden of going forward and negativing the inference is a slight one and, by the nature of things, rarely is there occasion to invoke it. It must be an extraordinary circumstance which prevents one from knowing what one possesses.

When one moves to the alternative ground for the trial court's conviction and for this court's affirmance, that of...

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