People v. Modern Amusement Co., Inc.

• Decision Date: 13 February 1973
• Citation: 72 Misc.2d 950,340 N.Y.S.2d 748
• Parties: The PEOPLE of the State of New York v. MODERN AMUSEMENT CO., INC. et al., defendants. The PEOPLE of the State of New York v. POLIGHT INC., Abraham Krasne, Defendants. The PEOPLE of the State of New York v. HMA Caterers, Inc., Maurice Maurer, Defendants.
• Court: New York City Court

Page 748

340 N.Y.S.2d 748

72 Misc.2d 950

The PEOPLE of the State of New York v. MODERN AMUSEMENT CO., INC. et al., defendants.

The PEOPLE of the State of New York v. POLIGHT INC., Abraham Krasne, Defendants.

The PEOPLE of the State of New York v. HMA Caterers, Inc., Maurice Maurer, Defendants.

Criminal Court of the City of New York, New York County.

Feb. 13, 1973.

Frank S. Hogan, Dist. Atty., New York County by William O. Purcell, Asst. Dist. Atty., of counsel, for the People.

Jay Goldberg by Gasthalter & Bibelnieks, New York City, for defendants Maurer and Krasne.

OPINION

ROBERT M. HAFT, Judge.

In these separate cases, joined by the consent of the parties for the purposes of this motion, the individual defendants, officers of the respective corporate defendants, each move to quash subpoenas Duces tecum requiring the production of specified motion picture films. The films had been viewed earlier by a Judge of this Court who determined that there was reasonable cause to believe them obscene in violation of Penal Law § 235.05. Accordingly, he issued summonses for the appearance of the two corporate defendants, arrest warrants for the three individual defendants and directed the issuance of the subpoenas here involved.

Defendants' motion to quash is based on several grounds: (1) that no witness fees were tendered them upon the service of the subpoenas; (2) that a subpoena to produce film alleged to be obscene may never issue without a prior adversary hearing; and (3) that the compelled production of the allegedly obscene film--the 'corpus delicti'--constitutes a violation of their privilege against self-incrimination.

Defendants' first two contentions are without substance. It is true that a witness fee must be tendered contemporaneously with the service of a subpoena in a civil case. C.P.L.R. § 2303. In a criminal case, however, witness fees are paid After a witness appears in court, upon appropriate application. C.P.L. § 610.50. Assuming that defendants would be entitled to any witness fee for producing the subpoenaed property upon their Required appearance as defendants in a criminal case (see Circle Floor Co., Inc. v. Silton Corp., 36 Misc.2d 634, 233 N.Y.S.2d 158 (Sup.Ct., Qns.Co.1962)), there is certainly no entitlement to the fee at the time of the service of the subpoena. Second, an adversary hearing may be required in an obscenity prosecution prior to police seizure of an allegedly obscene film (compare Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969) and Astro Cinema Corp. v. Mackell, 422 F.2d 293 (2d Cir. 1970) With People v. Heller, 29 N.Y.2d 319, 327 N.Y.S.2d 628, 277 N.E.2d 651 (1971), cert. granted 406 U.S. 916, 92 S.Ct. 1765, 32 L.Ed.2d 115 (1972)). But, here there was no seizure. Instead, the People followed the procedure (suggested by the Second Circuit Court of Appeals in Bethview, supra, and in other circuits, see Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968) and United States v. Alexander, 428 F.2d 1169 (8th Cir. 1970)) of issuing a subpoena instead of seizing the film. Clearly, no adversary hearing was required under these circumstances. See also People v. PAJ Theater Corp., 66 Misc.2d 373, 321 N.Y.S.2d 26, aff'd 70 Misc.2d 790, 334 N.Y.S.2d 645 (App.Term, 1st Dept. 1972).

Turning to defendants' third and primary contention, that their personal privilege against self-incrimination was violated by the procedures employed by the prosecution in this case, that claim, too, is without merit. Defendants insist that although each subpoena names both an individual defendant and his respective corporation (in a parenthetical reference), the subpoena should be construed as having been directed towards the individual only. The People argue that it was their intention to subpoena the corporations by their respective officers, not the officers individually, and since there is no privilege against self-incrimination which can be raised on behalf of a corporation (Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906)), defendants' contention must be rejected.

As a matter of proper form, a corporate subpoena may either issue directly to a corporation itself or to the representative of the corporation who is the custodian of its records. E.g. United States v. Held, 435 F.2d 1361, 1365 (6th Cir., 1970); Keiffe v. La Salle Realty Co., 163 La. 824, 112 So. 799 (1927); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Shaughnessy v. Bacolas, 135 F.Supp. 15 (S.D.N.Y.1955). But even assuming that the individual defendants here were subpoenaed personally and not as representatives of their corporations, their privilege against self-incrimination was not violated.

There is no longer any doubt, of course, that only testimonial incrimination is constitutionally protected. E.g. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1956); Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). While the subpoenas here involved require defendants to produce certain films in court, their...