People v. Stabile

CourtNew York City Court
Writing for the CourtWILLIAM E. RINGEL; Note also, that in his dissent in G.I. Distributors, supra
Citation58 Misc.2d 905,296 N.Y.S.2d 815
Decision Date24 January 1969
PartiesPEOPLE of the State of New York, Plaintiff, v. Emilio STABILE et al., Defendants.

Page 815

296 N.Y.S.2d 815
58 Misc.2d 905
PEOPLE of the State of New York, Plaintiff,
v.
Emilio STABILE et al., Defendants.
Criminal Court of the City of New York, New York County, Part 2B.
Jan. 24, 1969.

Page 817

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

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, for defendants; Herald Price Fahringer, Buffalo, of counsel.

Page 818

OPINION

WILLIAM E. RINGEL, Judge.

The defendants, charged with a violation of the obscenity law in that they did knowingly sell various allegedly obscene magazines to undercover policemen (Penal Law, § 235.05), move to dismiss the complaints against them on the ground that the subject matter of each complaint is constitutionally protected under the First Amendment to the United States Constitution and is not obscene as a matter of law. Each defendant now before the court, twelve in all, although separately charged, has been joined by consent of the parties for the purposes of this motion.

The People concede that none of these cases involve sales to minors (People v. Tannenbaum (1966), 18 N.Y.2d 268, 274 N.Y.S.2d 131, 220 N.E.2d 783, app. dism. 388 U.S. 439, 87 S.Ct. 2107, 18 L.Ed.2d 1300, rehr'g den. 389 U.S. 892, 88 S.Ct. 15, 19 L.Ed.2d 204; former Penal Law § 1141; Revised Penal Law Art. 235, see e.g. §§ 235.20, 235.21; Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944)), or pandering, 'which the Court found significant in Ginzburg v. United States, 383 U.S. 463 (86 S.Ct. 942, 16 L.Ed.2d 31)' (Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (1967)), or 'any suggestion of an assault upon individual [58 Misc.2d 906] privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it,' cf., Breard v. City of Alexandria (1951), 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities Commission of District of Columbia v. Pollak (1952), 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. (Redrup, ibid.)

The magazines in question, entitled Daisy, Good Gals, Bunny, Sissy, Countess, Exciting and Cover Girl, contain single photographs of females in various poses and stages of nudity, some provocative prominently displaying the vaginal aperture. The People concede that no sexual activity, e.g., sexual intercourse, sodomy or masturbation, is depicted, and defendants concede that the magazines were seized pursuant to lawful search warrants cf. (People v. Kozak, 56 Misc.2d 337, 288 N.Y.S.2d 692). Each defendant has pleaded not guilty.

Thus, the sole issue to be determined by the Court is whether the distribution of these magazines is protected by the First and Fourteenth Amendments.

Since this question is a question of law, it is to be determined by the Court (Jacobellis v. Ohio (1964), 378 U.S. 184, 188, 84 S.Ct. 1676, 12 L.Ed.2d 793; United States v. I Am Curious--Yellow, 2 Cir., 404 F.2d 196, 1968), and thus, the motion is properly before the Court (People v. Noroff (Calif.1967), 67 Cal.2d 791, 63 Cal.Rptr. 575, 433 P.2d 479; see also Model Penal Law, sec. 207.10(13).)

Freedom of the press, guaranteed by the First Amendment and absorbed into the Fourteenth Amendment (Gitlow v. New York (1925),

Page 819

268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138), does not extend to obscene material. The reason for this rule is based on the holding that obscene material is contraband and as such it enjoys no special constitutional protection (Roth v. United States (1957), 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498).

Accordingly, if the publications in question are not obscene, no crime is charged and the motion must be granted.

Emotionalism, misconceptions and attempts to define 'obscenity' have often led to confusion. (See People v. Marzano, 31 A.D.2d 52, 53, 295 N.Y.S.2d 228)

There are two judicially approved tests for obscenity--the Federal test, and the New York State test.

A. The Federal Test

The Federal test, sometimes called the 'prurient interest' or 'Roth' test (Roth v. United States, supra) applied in the Federal courts, fixes the Minimum standards that a State may employ in judging publications for obscenity.

This test provided '* * * whether to the average person, applying contemporary community standards, the dominant theme of the [58 Misc.2d 907] material taken as a whole appeals to prurient interest' (Roth, ibid at p. 489, 77 S.Ct. 1304, at p. 1311).

The test was amended in 1966 in three cases, Ginzburg v. United States (383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31), Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 and the 'Fanny Hill' case, A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts (383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1).

In Ginzburg, the Court held that when an objective examination of the material in question fails to establish obscenity, then the Court may examine into the publisher's intent and in that connection may consider the advertising material he issued in connection with the material under review. If the publisher attempted to 'titilate' the sexual interests of the public in an effort to sell his product, then the Courts may consider his advertising 'at its face value' and declare the publication obscene.

In Mishkin, the Court held that a publication aimed at deviant sexual groups is obscene if it appeals to the prurient interest of those groups.

In 'Fanny Hill' the Court held under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is 'utterly

Page 820

without redeeming social value' (383 U.S. at p. 418, 86 S.Ct. 975 at p. 977).

'Fanny Hill' thus modified Roth by requiring that a publication must be Utterly without redeeming social value before it could be proscribed. Nevertheless, if the book was 'designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large,' it may likewise be proscribed (Mishkin, at p. 508, 86 S.Ct. 958, at p. 963).

The term 'contemporary community standards' must not be interpreted in a parochial sense but is equated with the contemporary community standards of the nation as a whole since the area of expression that is protected is governed by the Federal Constitution (Jacobellis v. Ohio, supra, at p. 193, 84 S.Ct. 1676).

'Fanny Hill' was followed by Redrup v. New York (1967) (386 U.S. 767, 87 S.Ct. 1414). In effect, Redrup holds material to be obscene if it is hard-core pornography, And, in 'borderline' cases, the publication may be proscribed if (a) it is sold to a minor in violation of some local statute (People v. Tannenbaum, 18 N.Y.2d 268, 274 N.Y.S.2d 131, 220 N.E.2d 783, supra; Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, supra), Or, (b) if it is pandered (Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, supra), Or, (c) if it is foisted upon an unwilling public (Redrup, ibid; [58 Misc.2d 908] cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, supra; Public Utilities Commission v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068, supra).

Any doubt as to the meaning of Redrup is resolved in Central Magazine Sales, Ltd. v. United States (1967) (389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49). Central Sales involved a magazine called 'Exclusive' which contained a collection of photographs of females in various stages of nudity, and some of which are posed in such a manner as 'to reveal the genital area in its entirety.' There was also some suggestion of masochism in some of the photographs. Although the trial...

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15 practice notes
  • People v. Heller
    • United States
    • New York Court of Appeals
    • December 28, 1973
    ...N.E. 169 (portrayal of characters in a play as coarse and vulgar, who employ coarse and vulgar language, not obscene); People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 (photographs of nudes, with no indication of sexual activity, did not amount to hard core pornography)). The fact of an ......
  • People v. Mature Enterprises, Inc.
    • United States
    • New York City Court
    • March 1, 1973
    ...463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), as would the finding of any one of the three added tests in Redrup, supra. (People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 (1969); Shinall v. Worrell, D.C., 319 F.Supp. 485 Clearly, this case does not involve admission to the theatre of minors (......
  • Stroud v. State, No. 570S107
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1971
    ...for example, United States v. 4400 Copies of Magazines, etc., 276 F.Supp. 903 (D.Md.1967); People v. Page 856 Stabile, et al. (1969), 296 N.Y.S.2d 815, 58 Misc.2d 905; Wayne County Prosecutor v. Doerfler (1968), 14 Mich.App. 428, 165 N.W.2d 648; State v. J. L. Marshall News Co. (1967), 13 O......
  • People v. Kirkpatrick
    • United States
    • New York City Court
    • October 28, 1970
    ...Law 235.05 is an attempt by the New York Legislation to codify the definition of obscenity as expressed in Memoirs (People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 With the advent of pivotal Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and its subsequent appli......
  • Request a trial to view additional results
15 cases
  • People v. Heller
    • United States
    • New York Court of Appeals
    • December 28, 1973
    ...N.E. 169 (portrayal of characters in a play as coarse and vulgar, who employ coarse and vulgar language, not obscene); People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 (photographs of nudes, with no indication of sexual activity, did not amount to hard core pornography)). The fact of an ......
  • People v. Mature Enterprises, Inc.
    • United States
    • New York City Court
    • March 1, 1973
    ...463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), as would the finding of any one of the three added tests in Redrup, supra. (People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 (1969); Shinall v. Worrell, D.C., 319 F.Supp. 485 Clearly, this case does not involve admission to the theatre of minors (......
  • Stroud v. State, No. 570S107
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1971
    ...for example, United States v. 4400 Copies of Magazines, etc., 276 F.Supp. 903 (D.Md.1967); People v. Page 856 Stabile, et al. (1969), 296 N.Y.S.2d 815, 58 Misc.2d 905; Wayne County Prosecutor v. Doerfler (1968), 14 Mich.App. 428, 165 N.W.2d 648; State v. J. L. Marshall News Co. (1967), 13 O......
  • People v. Kirkpatrick
    • United States
    • New York City Court
    • October 28, 1970
    ...Law 235.05 is an attempt by the New York Legislation to codify the definition of obscenity as expressed in Memoirs (People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 With the advent of pivotal Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and its subsequent appli......
  • Request a trial to view additional results

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