People v. Weingarten

• Decision Date: 22 November 1967
• Citation: 55 Misc.2d 681,286 N.Y.S.2d 429
• Parties: The PEOPLE of the State of New York, Respondent, v. Irving WEINGARTEN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 429

286 N.Y.S.2d 429

55 Misc.2d 681

The PEOPLE of the State of New York, Respondent, v. Irving WEINGARTEN, Defendant-Appellant.

Supreme Court, Appellate Term, First Department.

Nov. 22, 1967.

Lipsitz, Green & Fahringer, Buffalo, Herald Price Fahringer, Buffalo, of counsel, for appellant.

Frank S. Hogan, Dist. Atty., Michael R. Stack, Buffalo, of counsel, for respondent.

Before GOLD, J.P., and HECHT, and HOFSTADTER, JJ.

PER CURIAM:

While it was error for the learned court below to base the judgment of conviction on the application of the Federal standard of obscenity alone, we affirm because in our opinion the book is obscene under the standards of our Court of Appeals as well.

In People v. Richmond County News, Inc., 9 N.Y.2d 578, 586, 216 N.Y.S.2d 369, 375, 175 N.E.2d 681, 685 the court expressed the view that a conviction under Penal Law § 1141 required a showing of 'hard-core pornography', and, the court explained (p. 587, p. 376 of 216 N.Y.S.2d p. 686 of 175 N.E.2d) 'Under our statute section 1141 of the Penal Law, the test of the obscene, of the pornographic, is not in the tendency or appeal of the material, but rather in its content objectively appraised. (citation) It focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification. * * * It smacks, at times, of fantasy and unreality, of sexual perversion and sickness and represents, according to one thoughtful scholar, 'a debauchery of the sexual faculty'.'

The learned court below properly found that the book at bar contained many descriptions of deviate sexual behavior and emphasized sexual perversion in various forms. It thus went beyond accounts of 'normal sexuality' and was dominated by what is 'sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification'. The material, therefore, meets the test of obscenity imposed by Richmond. And there can be no question but that it meets the three-fold Federal test requiring 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 without redeeming social value' (A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of the Commonwealth of Massachusetts, 383...