People v. Richmond County News, Inc.

• Decision Date: 11 July 1960
• Citation: 11 A.D.2d 799,205 N.Y.S.2d 94
• Parties: PEOPLE of the State of New York, Respondent, v. RICHMOND COUNTY NEWS, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 94

205 N.Y.S.2d 94

11 A.D.2d 799

PEOPLE of the State of New York, Respondent, v. RICHMOND COUNTY NEWS, INC., Appellant.

Supreme Court, Appellate Division, Second Department.

July 11, 1960.

Weidenbaum, Blank & Teicher, New York City, for appellant; Jacob Weidenbaum, New York City, of counsel.

John M. Braisted, Jr., Dist. Atty., St. George, Staten Island, for respondent; Thos. R. Sullivan, Staten Island, on the brief.

Before NOLAN, P. J., and BELDOCK, UGHETTA, CHRIST and PETTE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Court of Special Sessions of the City of New York, Borough of Richmond, rendered November 19, 1958, convicting it, after a trial, of violating section 1141 of the Penal Law (sale and distribution of obscene books and articles), and sentencing it to pay a fine of $250. The fine has been paid.

Judgment reversed on the law and the facts, information dismissed, and fine remitted.

We believe that the magazine here involved was obscene, as found by the trial court in its formal opinion in this case (People v. Richmond County News, 13 Misc.2d 1068, 179 N.Y.S.2d 76). We disagree, however, with its finding and conclusion that knowledge of such obscenity must be imputed to the defendant. The only bases in the record for imputing such knowledge are the pictorial displays on the covers of the magazine and its title. In our opinion, such external displays and title do not necessarily invite defendant's further inquiry or investigation; they constitute an inadequate basis on which to impute knowledge to the defendant of the contents of the magazine.

We conclude, therefore, that the proof in this case fails to establish beyond a reasonable doubt that defendant had knowledge of the obscene character of the magazine; and, in the absence of such proof, defendant's conviction cannot stand under the statute (Penal Law, § 1141; cf. People v. Engel, 7 N.Y.2d 1002, 200 N.Y.S.2d 48; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205).

The dissenting memorandum calls attention to the fact that defendant on this appeal does not make the contention that it had no knowledge of the magazine's obscene contents. While defendant does not specifically raise the point, nevertheless the issue as to its scienter or knowledge pervades the appeal as it did the trial; and the District Attorney has endeavored to meet it here as he did on the trial. In any event, as indicated by the cases cited, proof of scienter is indispensable in order to support a conviction under the statute.

NOLAN, P. J., and UGHETTA, CHRIST, and PETTE, JJ., concur.

BELDOCK, Justice, dissents and votes to affirm the judgment of conviction, with the following memorandum:

Defendant is a wholesaler and distributor of magazines. It is the sole and exclusive distributor in Richmond County of the...