People v. Victoria
| Decision Date | 12 October 1978 |
| Parties | The PEOPLE of the State of New York v. Thomas VICTORIA, Defendant. |
| Court | New York City Court |
John J. Santucci, Dist. Atty., Queens County by Bonnie R. Cohen, Criminal Law Investigator, Kew Gardens, for the People.
Seymour S. Detsky, Kassner & Detsky, P. C., New York City, for defendant.
The defendant on June 20, 1978, was arrested and charged with the crime of Obscenity in the Second Degree in violation of Penal Law Sec. 235.05, that he knowingly promoted obscenity in that the defendant did sell a film to the deponent, "A Private Lesson," and said film had been deemed to be obscene.
This motion to dismiss is made upon the grounds that the information is defective pursuant to Sec. 170.35 of the Criminal Procedure Law in that the Statute defining the defense is unconstitutional as applied. Further, that the statute as applied violates the defendant's constitutional rights insofar as it denies the defendant the equal protection of the law as guaranteed by the 14th Amendment of the United States Constitution. The moving papers further state that in view of the fact that Sec. 235.15 of the Penal Law specifically exempts, among others, a motion picture projectionist from prosecution from obscenity, but does not afford the same protection for a cashier in a bookstore. Sec. 235.15, as amended in 1971, does provide an affirmative defense to motion picture projectionists and other groups of employees of a motion picture theater an affirmative defense to the charge of the violation of the obscenity statute. The New York State Legislature has seen fit to grant projectionists the right to function in a projection booth and do all the various functions of that position associated with the running of a movie projector and not be subjected to prosecution for obscenity.
The mere fact that this protection as set forth in Penal Law 235.15 does not extend to cashiers in bookstores, does not discriminate and violate the defendant's constitutional rights to equal protection as guaranteed by the 14th Amendment.
The Legislature has the power to enact laws governing the distribution of obscenity based upon a reasonable basis. When examining the statute in question, strict scrutiny should not be employed since obscene material is not protected by the 1st Amendment, Miller v. Cal., 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419, Reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). Thus as long as there is some rational relationship between the evil to be eliminated and the classification employed, the statute must be upheld.
In the area of . . . social welfare, a state...
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Pollitt v. Connick
...created distinction and the State's legitimate interest in the social welfare of its citizens. See, e.g., People v. Victoria, 96 Misc.2d 926, 409 N.Y.S.2d 937, 938 (N.Y.Crim.Ct.1978). Although the Court finds that paragraph D is unconstitutional to the extent that it exempts from its strict......
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Kimbler, In re
...v. Bono (Mass.App.1979) 384 N.E.2d 1260, 1262; People v. Illardo (1978) 97 Misc.2d 294, 411 N.Y.S.2d 142, 145; People v. Victoria (1978) 96 Misc.2d 926, 409 N.Y.S.2d 937, 938; State v. Burgun (1976) 49 Ohio App.2d 112, 359 N.E.2d 1018, 1019, 1026-1027; State v. J-R Distributors, Inc. (1973)......