People v. Wrench

• Decision Date: 31 January 1973
• Citation: 341 N.Y.S.2d 985,73 Misc.2d 434
• Parties: The PEOPLE of the State of New York v. Joseph WRENCH and Rory Cunningham, Defendants.
• Court: New York City Court

Page 985

341 N.Y.S.2d 985

73 Misc.2d 434

The PEOPLE of the State of New York v. Joseph WRENCH and Rory Cunningham, Defendants.

Criminal Court of City of New York, New York County, Part AP 10.

Jan. 31, 1973.

Frank S. Hogan, Dist. Atty. of New York County by William Purcell, Asst. Dist. Atty., of counsel, for the People.

Morris J. Ezra, New York City, for defendants Wrench and Cunningham.

OPINION

WILLIAM S. SHEA, Judge:

This is a motion to suppress a film. During the hearing the Court viewed the film seized by the officer and heard the officer's testimony. Both defendants chose not to testify at the hearing.

The defendants are each charged with the violation of Penal Law § 235.05 in that knowing its content and character, they promoted and possessed with intent to promote, a certain obscene film.

The Court determines the facts to be that the officer on July 27, 1972 entered the premises, 33 Park Row, New York City, a book store and peep show establishment. The officer had conversations with the defendants concerning the merchandise for sale and one of the defendants gave the officer change to view the film in a peep show machine. The officer viewed the film, left the store, and returned the next day. On this day, upon entering, the officer noted that the front of the store, to a depth of about 50 feet, was used for selling books and movies. The rear of the store, about another 50 feet in depth held 20 peep show machines, each standing about six feet tall with an opening, at eye level, measuring six inches in width and two inches in height, used for viewing films. The machines are designed for one person viewing at a time. Two people could watch the film together, but they would have to stand quite close together. The officer inserted a quarter in the machine which allowed him to view the film for about two minutes. At the end of that time, the film would black out and to continue viewing, another quarter would have to be inserted. Upon doing so, the machine would go on again and the film would continue. Upon the officer's continuous insertion of quarters the film came to the point where it started and continued to repeat the entire film. The viewing of the entire film by the officer took about 16 minutes.

The officer testified that the film in the machine could not be purchased although other similar pictures and films could be purchased. The officer asked the defendants if they had the keys to the machine. The keys were produced by the defendants and the machine was opened by them. The officer seized the film and vouchered it in police property clerk's office. The film was produced for viewing at the hearing on this motion. It was viewed by the Court, the defendants and their attorney and the district attorney.

The film depicts two males and a female engaging in various sexual activity. The film is silent. It bears no title, no musical background, no cast of characters and no production credits. In fact there is not one letter of printing on it. In effect it is, in itself, in no way identifiable. Even though it is in form a film, it is actually nothing more than a series of different poses taken by two men and a woman.

On this motion the Court is not determining whether or not the film is obscene and there is no claim that Penal Law § 235.05 is unconstitutional. The only issue is the legality of the seizure.

The People first contend that the defendants do not have standing to make this motion to suppress. They argue that since the defendants do not allege a proprietary interest in the store or the film, they are not 'persons aggrieved' and thus their constitutional rights were not violated by the seizure. In this case, the defendants have standing because there was a search and seizure in a premises in which they were present and the evidence seized is to be used against them. (Jones v. U.S., 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; C.P.L. § 710.20; People v. Feliciano, 70 Misc.2d 83, 332 N.Y.S.2d 830; People v. Chavez, NYLJ 8/4/72 p. 9 col. 7; People v. Stojack, 29 N.Y.2d 798, 327 N.Y.S.2d 361, 277 N.E.2d 410, revg. 34 A.D.2d 205, 310 N.Y.S.2d 965 on dissenting opinion therein).

The People further contend that under the circumstances of this case, the seizure by the officer was valid because there was no other way to have the evidence--the film--produced before the Court so that it may be used as evidence in the prosecution of the case against the defendants. On this point, the defendants contend that the film should be suppressed because it is protected by the First and Fourteenth Amendments and therefore there should have been an adversary hearing on the question of obscenity prior to its seizure.

Our highest courts have consistently pointed out that special considerations exist in the area of search and seizure when freedom of speech and press are involved. (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809). Recognizing that while obscenity is not protected by the First Amendment (Roth, supra), any procedure which permits the seizure and impounding of books or other materials protected by the First Amendment must have adequate safeguards against the suppression of non-obscene materials (Kansas, supra; Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127). Motion pictures are protected by the First Amendment (Joseph Burstyn Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098).

In Marcus, the Court found that a vague search warrant issued ex parte, left too broad a discretion in the police officers who executed the warrant and which resulted in the seizure of 11,000 copies of 280 different publications. The warrant, in effect, permitted the officers to seize anything they considered obscene.

In Kansas, the police seized all copies (1715 books) of a certain class of publications pursuant to a warrant, issued ex parte by a judge who read several samples. The Court held that such a procedure, without an adversary hearing, on the question of obscenity, did not sufficiently safeguard against the right of the public in a free society to the unobstructed circulation of non-obscene books.

The seizures in Marcus and Kansas involved a 'massive' amount of books which may reach a substantial audience and therefore the question of what is or is not obscene should not have been left to the discretion of the police officers. Where a 'massive' seizure is involved, due process requires a prior adversary hearing on the question of obscenity.

The argument has been made that the need for an adversary hearing is not necessary where there is a seizure of a Single motion picture (Lee Art Theatres Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313) since the seizure of one film is analogous to the seizure of one book and thus is not a 'massive seizure.' But the weight of authority in the federal courts is otherwise. See Bethview Amusement Corp. v. Cahn, 2 Cir., 416 F.2d 410; Astro Cinema Corp. v. Mackell, 2 Cir., 422 F.2d 293; Metzger v. Pearcy, 7 Cir., 393 F.2d 202; Tyrone Inc. v. Wilkinson, 4 Cir., 410 F.2d 639.

'The restraint involved in seizing a single copy of a book is exceedingly small . . .. A film however, is not directed to a single purchaser; it is aimed at all those who would be in the audience on the days that the film is scheduled to be shown.' (Astro, 422 F.2d at p. 295)

In Bethview and Astro, the theatre had a potential audience of 4,000 persons per week. Preventing this number of persons from viewing a film is certainly equivalent to seizing all copies of the books involved in Kansas. Such a restraint is substantial and would require an adversary hearing prior to seizure.

Our Court of Appeals, in People v. Heller, 29 N.Y.2d 319, 327 N.Y.S.2d 628, 277 N.E.2d 651 rejected the federal cases requirement of a prior adversary hearing contending that where a judge views a film, finds probable cause that it is obscene and then authorizes a warrant for its seizure, such a procedure satisfies constitutional standards for the protection of first amendment rights. The Heller court contended that Astro and Bethview go beyond the requirements of the Supreme Court as enunciated in Marcus (the Supreme Court has granted certiorari in the Heller case, but decision is still pending).

While there is a conflict as to the extent of the prior judicial scrutiny--by adversary hearing or judicial viewing of the items in issue-there is no conflict over the fact that there must be some judicial scrutiny before an allegedly obscene material can be seized. What is clear is that the police themselves cannot determine what is obscene in a massive seizure (Cambist Films Inc. v. Duggan, 3 Cir., 420 F.2d 687).

Thus, as strange as it seems, although the police may seize and/or arrest a Person for violating the obscenity statute, they may not seize the allegedly obscene materials unless there was some sort of prior judicial scrutiny.

The People, in this case, claim that if this film could not be seized by the officer, it would not be available as evidence against the defendants at a trial. Thus the People are left with no means of enforcing its obscenity statutes, which they have a right and duty to do (People v. Richmond County News Co., 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681; Kingsley Books Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Alberts v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498).

This situation gives rise to a dilemma between the First Amendment right to show and view a film--the exercise of free speech--as against the People's rights to enforce its constitutional laws in the field of obscenity--the aim to punish those who abuse free speech. This dilemma has been considered in the past in the federal courts by suggesting various remedies available to the people. See Astro Cinema v. Mackell, 422 F.2d 293 (2d Cir.) at p. 296.

'While the...