State v. DePiano

Decision Date10 May 1977
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Leonard DePIANO, Dry Amusement Company, Inc., and Robert Owens, Defendants- Appellants.
CourtNew Jersey Superior Court — Appellate Division

Robert E. Levy, Asbury Park, for defendants-appellants.

Benjamin D. Leibowitz, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges LYNCH, MILMED and ANTELL.


A jury found all three defendants guilty of one count of an indictment which charged them with possessing, with intent to sell, obscene materials. Defendant Robert Owens was additionally found guilty of another count of the same indictment which charged him with selling three obscene magazines. Each offense is a misdemeanor under N.J.S.A. 2A:115-2. Defendants' pretrial motions to dismiss the indictment had been denied.

Defendant Leonard DePiano was sentenced to the State Prison for a term of one to three years and a fine of $1,000 1 was imposed upon him. In regard to defendant Owens, the two counts were merged for sentencing and a fine of $750 was imposed upon him. A fine of $1,000 was imposed on the corporate defendant, Dry Amusement Company, Inc.

The State's proofs at trial showed that in 1974 DePiano, president of defendant corporation, applied for and obtained for the corporation a local mercantile license to operate an adult book store at 21 Highway 35 in Neptune Township; that on two occasions prior to November 20, 1974 Investigator Wilmore of the Monmouth County Prosecutor's office observed DePiano in the store working behind the counter; that Wilmore made a purchase from DePiano in the store prior to November 20, 1974, and that on November 20, 1974 Detective Martin, of the Neptune Township Police Department, in the company of Investigator Wilmore, purchased three magazines at the store from Owens. The magazines, costing a total of $28.90, were wrapped in transparent cellophane. They bore the titles: "Teenage Emotions," "Open Sex" and "Loving Hands, Stud No. 5."

At the close of the State's case defendants moved for a dismissal on the ground that the State had failed to prove a prima facie case. The motion was denied. Defendants then rested without presenting any testimony on their behalf and moved for a directed verdict (judgment of acquittal). That motion and defendants' postconviction motion to set aside the jury verdicts or for a new trial were also denied.

The grounds urged by defendants for vacation of the convictions and sentences and dismissal of the indictment, as set forth in the brief submitted on their behalf, are:

Point I. Distribution of powers.

Point II. N.J.S.A. 2A:115-1.1 (1972) cannot be construed to include the constitutional standards set forth in the most recent decisions of the United States Supreme Court.

Point III. N.J.S.A. 2A:115-2 is invalid in that it violates Article I, Section 6 of the New Jersey State Constitution.

Point IV. As to defendant-appellant, DePiano, the indictment should be dismissed, since no supporting evidence of the charges was presented to the grand jury.

Point V. N.J.S.A. 2A:115-2 and N.J.S.A. 2A:115-6 are in pari materia, must be read and construed together, and require dismissal of the indictment against defendant-appellant, Owens.

Point VI. Since the indictment fails to charge that the defendants had knowledge that the publications herein were obscene, it is fatally defective and should be dismissed as a matter of law.

Point VII. State failed to meet its burden of proof as to contemporary community standards and expert testimony.

Point VIII. Court erroneously submitted the issue of obscenity to the jury on a res ipsa loquitur approach.

Point IX. Court failed to accurately charge the constituent elements of prurient appeal.

Point X. Court erred in failing to charge, with respect to the appeal to prurient interest of deviants.

Point XI. Objections to charge of the court to the jury.

In Points I and II, defendants criticize what they refer to as the "judicial engraftment" on L.1971, c. 449, by our State Supreme Court in State v. De Santis, 65 N.J. 462, 323 A.2d 489 (1974). The object of the criticism undoubtedly is the court's "supplying a stopgap constitutional interpretation" (id. at 472, 323 A.2d 489) of the statute, incorporating within it the requirements of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). In De Santis the court noted that

The history of L.1971, c. 449 leaves no room for doubt that the Legislature which adopted it intended, as did the enacting body in WELKE, SUPRA, 216 N.W.2D AT 645,2 "to proscribe obscenity to the extent consistent with constitutional limitations." See N.J.S.A. 2A:115-1.1; N.J.S.A. 2A:115-1.1a. (at 473, 323 A.2d at 495)

The court then concluded:

Pending further legislative action we construe L.1971, c. 449 in a manner comparable to the construction by the Minnesota Supreme Court in Welke, supra, 216 N.W.2d at 646-647. That construction is referred to earlier in this opinion; it now furnishes adequate notice and warning that "articles and publications which are patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals" (216 N.W.2d at 646) are embraced within the word "obscene" as used in L.1971, c. 449. And we now hold that a defendant may be convicted under the statute if the trier of fact finds from the evidence:

(1) "(t)hat the material depicts or describes, in a patently offensive way, sexual conduct as explicated above;

(2) that to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest in such matters; and

(3) that the material, taken as a whole, lacks serious literary, artistic, political, or scientific value." 216 N.W.2d at 647. (at 473-474, 323 A.2d at 495)

Defendants' criticism of this interpretation of the statute is both misplaced and misdirected. It is misplaced, since the construction which the court in De Santis gives the statute clearly satisfies "Miller's demand that the prohibited hardcore sexual conduct be 'specifically defined by the applicable state law, as written or authoritatively construed.' 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 430." State v. De Santis, supra, 65 N.J. at 472, 323 A.2d at 494 (emphasis supplied). It is misdirected to this court since we are bound by the construction given the statute by our Supreme Court. See Silagy v. State, 105 N.J.Super. 507, 510, 253 A.2d at 478 (App.Div.), certif. den. 54 N.J. 506, 257 A.2d 106 (1969).

Implicit in the DeSantis decision is a determination by the court that the Miller requirements do not impinge upon the freedom "of speech or of the press" provisions of our State Constitution, N.J.Const. (1947), Art. I, par. 6. Beyond this,

* * * the Legislature in enacting N.J.S. 2A:115-2 N.J.S.A., intended to forbid obscene matter to the fullest extent permissible under the First Amendment (of the Federal Constitution), made applicable to the states by the Fourteenth Amendment. (State v. Hudson County News Co., 41 N.J. 247, 265, 196 A.2d 225, 234 (1963))

" * * * (O)bscenity is not within the area of constitutionally protected speech or press." Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, 1507 (1957). See also, Miller v. California, supra, where Chief Justice Burger, in his opinion for a majority of the court notes:

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. (413 U.S. at 23, 93 S.Ct. at 2614, 37 L.Ed.2d at 430)

We discern no sound reason for cloaking such material with the "liberty of speech or of the press" protection of our State Constitution, as suggested by defendants' Point III.

Defendant DePiano claims (Point IV) that as to him the indictment should be dismissed because the grand jury was not presented with any supporting evidence of the charge that he violated N.J.S.A. 2A:115-2 by possessing, with intent to sell, "certain properties * * * considered as obscene and pornographic in nature and connotation." We disagree. Investigator Wilmore of the Monmouth County Prosecutor's Office testified before the grand jury which returned the indictment. He had before him the three magazines which were purchased at the corporate defendant's adult book store. These publications unquestionably contain patently offensive representations of ultimate sexual acts, masturbation, and lewd exhibition of the genitals, and meet the three-pronged test of De Santis set forth above. Wilmore testified that at the time of purchase DePiano was "the proprietor" of the establishment. There was, accordingly, sufficient evidence upon which to support the charge. In such circumstances, dismissal of the indictment would be improper. State v. Ferrante, 111 N.J.Super. 299, 304, 268 A.2d 301 (App.Div.1970). See also, State v. Weleck, 10 N.J. 355, 364, 91 A.2d 751 (1952).

We find no "difference in degree of transgression", State v. Smith, 58 N.J. 202, 207, 276 A.2d 369 (1971), of the obscenity laws, N.J.S.A. 2A:115-1 et seq., between the projectionist involved in exhibiting an obscene motion picture show in his employer's theatre on the one hand and the clerk who sells obscene magazines or books in his employer's book store on the other. To this extent, we agree with defendant Owens' claim (Point V) that he is being deprived of the same treatment afforded "a motion picture operator, or assistant operator" under N.J.S.A. 2A:115-6, which reads:

The penalties imposed by the provisions of chapter 115 of Title 2A of the New Jersey Statutes shall not apply to a motion picture operator, or assistant operator, who is employed in a motion picture theatre, in connection with...

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