People v. Kozak

• Decision Date: 28 March 1968
• Citation: 288 N.Y.S.2d 692,56 Misc.2d 337
• Parties: The PEOPLE of the State of New York, Plaintiffs, v. Jack KOZAK, Defendant. (2)
• Court: New York City Court

Page 692

288 N.Y.S.2d 692

56 Misc.2d 337

The PEOPLE of the State of New York, Plaintiffs, v. Jack KOZAK, Defendant.

Criminal Court of the City of New York, New York County, Part 1A(2).

March 28, 1968.

Frank S. Hogan, Dist. Atty., New York County, Kenneth Conboy, Asst. Dist. Atty., for the People.

Stanley Hendricks, New York City, for defendant.

OPINION

WILLIAM E. RINGEL, Judge.

Defendant's application to reargue his motion to suppress is granted. The facts adduced at the hearing disclose that the defendant was arrested and charged with violation of Penal Law section 1141 after he had offered to sell the arresting officer some photographs of nude females which he had displayed for sale.

In the opinion of the officer, the photographs were obscene. The officer had no search or arrest warrant. No evidence was presented to indicate that the photographs had been previously examined and held to be obscene by any judge.

The sole question presented is whether a police officer, without prior judicial scrutiny of the material in question may lawfully seize printed matter or photographs based on his evaluation that these items were obscene and were possessed with intent to sell.

The United States Supreme Court stated in Redrup v. State of New York (1967), 386 U.S. 767, 87 S.Ct. 1414, 17 L.Ed.2d 49, that the conflict between a State's asserted power to suppress distribution of books and magazines and the guarantees of the First and Fourteenth Amendments is a recurring one.

From the many cases in this area which have come before the Courts with respect to the distribution of alleged obscene materials, several basic rules have evolved:

(1)Obscene material does not enjoy any constitutional immunity under the First Amendment (freedom of speech and press) or under the Fourteenth Amendment (Due Process Clause) (Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498).

(2)Obscene material is contraband (Marcus v. Search Warrants of Property, etc. (1961), 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127).

(3)Obscene material is without redeeming social importance (Roth, ibid).

(4)The protection of the First Amendment is absorbed into the Fourteenth Amendment (People v. Epton (1967), 19 N.Y.2d 496, 281 N.Y.S.2d 9, 227 N.E.2d 829, cert. den. 390 U.S. 29, 88 S.Ct. 824, 19 L.Ed.2d 808; Gitlow v. People of State of New York (1925), 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138).

(5)The guarantees under the Federal Constitution are applicable to the States (Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Murphy v. Waterfront Commission (1964), 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678).

(6)Although obscene material is contraband, it may not be equated with contraband such as weapons, narcotics, etc., which may be seized out-of-hand (Marcus, ibid).

(7)To sustain as lawful the seizure of obscene printed material or photographs, prior judicial scrutiny holding it is obscene is required. The rule protects matter which is not obscene from summary seizure and prevents the police (Marcus, ibid) and other governmental agencies (Bantam Books, Inc. v. Sullivan (1963), 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584) from acting as public censors.

(8)The police may not make an Ad hoc determination of what is obscene (Marcus, ibid).

(9)Search warrants directing the seizure of books and publications must describe with 'the most scrupulous exactitude' the material to be seized (Stanford v. State of Texas (1965), 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431; Marcus, ibid; A Quantity of Copies of Books v. State of Kansas (1964), 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; People v. Rothenberg (1967), 20 N.Y.2d 35, 281 N.Y.S.2d 316, 228 N.E.2d 379).

(10) Pictures come within the ambit of these rules (Jacobellis v. State of Ohio (1964), 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; United States v. 4,400 Copies, etc. (D.C.1967), 276 F.Supp. 902; People v. Rothenberg, supra).

In summary, it may be said: 'The common thread running through recent Supreme Court decisions on the seizure of allegedly obscene matter is that because the line between protected and unprotected speech is so difficult to draw, dissemination of a particular work should be completely undisturbed, at least until an independent determination of obscenity is made by a judicial officer. Complete restraint on any work must await a final judicial determination of obscenity.' (United States v. Brown (D.C.1967), 274 F.Supp. 561, 563).

Such a determination may also be made in a civil proceeding (Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469).

The same rules apply to seizures made incidental to an arrest for violation of the obscenity statutes. 'This result cannot be avoided by the rubric of a search incident to a lawful arrest. As heretofore discussed, the Supreme Court has apparently determined that borderline speech must be protected by the application of relatively elaborate procedures prior to suppression via seizure. Such procedures are impossible to follow in a seizure incident to arrest.' (United States v. Brown, supra, 274 F.Supp. at p. 565)

The rules outlined above apply equally to so-called 'hard-core pornography.' This must be the rule since that term, although given much prominence in the obscenity decisions (People v. Richmond County News, Inc. (1961), 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681), has never been defined except in very general terms.

That definition, or rather the lack thereof, is best epitomized by Mr. Justice Stewart in his concurring opinion in Jacobellis v. State of Ohio, supra, in which he said at p. 197 of 378 U.S., at p. 1683 of 84 S.Ct.:

'It is possible to read the Court's opinion in Roth v. United States and Alberts v. (State of) California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it,...