People v. Strassner

• Decision Date: 19 July 1949
• Citation: 87 N.E.2d 280,299 N.Y. 325
• Parties: PEOPLE v. STRASSNER.
• Court: New York Court of Appeals Court of Appeals

299 N.Y. 325
87 N.E.2d 280

PEOPLE
v.
STRASSNER.

Court of Appeals of New York.

July 19, 1949.

Appeal from Supreme Court, Appellate Division, First Department.

Dave Strassner was convicted by a judgment of the Court of Special Sessions of the city of New York, New York County, Paige, P. J., Perlman and Strong, JJ., for unlawfully possessing an indecent phonograph record in violation of Penal Law, s 1141, Consol. Laws, c. 40. From a judgment of the Appellate Division, 275 App.Div. 691, 87 N.Y.S.2d 421, unanimously affirming the judgment of conviction, defendant appeals by permission of an Associate Judge of the Court of Appeals.

Judgments reversed and information dismissed.

[87 N.E.2d 280]

Henry A. Drescher, New York City, for appellant.

Frank S. Hogan, District Attorney, New York City (Edwin C. Hoyt, Jr., Brentwood, and Whitman Knapp, New York City, of counsel), for respondent.

BROMLEY, Judge.

Defendant was convicted on an information under section 1141 of the Penal Law, Consol. Laws, c. 40, charging him with unlawfully possessing and selling an obscene phonograph record. He concedes its sale and its obscenity but appeals on the ground that the statute does not cover a phonograph record.

The pertinent portion of section 1141 reads as follows: ‘1. A person who sells, lends, gives away, distributes or shows, or offers to sell, lend, give away, distribute, or show, or has in his possession with intent to sell, lend, distribute or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, picture, drawing, photograph, figure or image, or any written or printed matter of an indecent character; or any article of instrument of indecent or immoral use, or purporting to be for indecent or immoral use or purpose * * * Is guilty of a misdemeanor’.

The information charged defendant with the crime of unlawfully possessing ‘with intent to sell, lend, give away, and show, a certain obscene, lewd, lascivious, filthy,

[87 N.E.2d 281]

indecent and disgusting phonograph record, having thereon matter of an indecent character’. The descriptive adjectives clearly indicate that the information was framed in the language of the first clause of the statute. That clause does not specify a phonograph record and the items which are enumerated therein all are characterized by visual representation of ideas...