State v. Krochta

CourtNew York Town Court
Writing for the CourtEDWARD L. ROBINSON; At completion of Detective Kieffer's testimony; I, therefore; I am hereby, orally
Citation372 N.Y.S.2d 397,83 Misc.2d 129
Decision Date22 August 1975
PartiesSTATE of New York, Plaintiff, v. Michael KROCHTA.

Page 397

372 N.Y.S.2d 397
83 Misc.2d 129
STATE of New York, Plaintiff,
v.
Michael KROCHTA.
Town Court of Amherst, Erie County.
Aug. 22, 1975.

Page 398

Edward C. Cosgrove, Dist. Atty. (Judith Blake Manzella, Buffalo, of counsel), for plaintiff.

David Gerald Jay, Buffalo, and Burton W. Sandler, Towson, Md., for defendant.

Page 399

OPINION

EDWARD L. ROBINSON, Justice.

On Monday, March 10, 1975, at approximately 10:30 A.M., Detective Donald C. Kieffer of the Amherst Police Department entered the Adult Book Store where the defendant is employed as a cashier. A sign on the front door of those premises stated that books and other materials which were sold within were sexually explicit (Rec. p. 23). Detective Kieffer purchased a magazine at the store and left (p. 25). He re-entered shortly thereafter in the company of other police officers and Hon. Sherwood Bestry, Amherst Town Judge (Rec. p. 25). The defendant was placed under arrest pursuant to an arrest warrant previously issued (Rec. pp. 26 & 48). While the defendant was under arrest and behind the counter under the custody of a police officer, the Court Stenographer set up his equipment and Detective Kieffer began selecting magazines sealed in plastic-type material and handed the same to Town Justice Bestry for his inspection. If after looking at the front and back of said magazine, Justice Bestry felt there was need for further inspection, he would tear off the plastic material and look inside the magazine. If he then felt the magazine was obscene, he would have the same marked as an exhibit. This procedure was conducted for some 55 magazines. (See Transcript of March 10, 1975, pp. 2 through 24).

After completing the examination of 55 magazines selected by Detective Kieffer, Town Justice Bestry placed Detective Kieffer under oath to testify that he had purchased a magazine on March 3, 1975, and brought the same to Justice Bestry; that Justice Bestry had viewed the magazine and found reasonable cause to believe it was obscene, and issued an arrest warrant; Detective Kieffer also testified that he requested Justice Bestry to go with him to the Book Store to View various magazines offered for sale on the premises.

At completion of Detective Kieffer's testimony, Justice Bestry made the following statement for the record. (See pp. 28, 29 Transcript March 10, 1975).

THE COURT: 'Let the record show that I have examined the various magazines presented to me by Detective Kieffer on this date and I found reasonable cause to believe that 55 of said magazines to be obscene.

I, therefore, authorized Detective Kieffer and Detective Czechowicz to seize said magazines.

I do not believe that it is necessary under these circumstances to have an application for a Search Warrant prepared, nor do I believe it is necessary for me to issue a Search Warrant.

Page 400

I have already reviewed the material and I have made my determination as to reasonable cause and I find reasonable cause to believe that said magazines are obscene and therefore I am hereby authorizing a seizure of said magazines.

This is an establishment open to the public and I entered said premises, resulting from said invitation to the public to enter I am over 21 years of age.

Okay. That will take care of the magazines. Do you have some other materials that you want me to examine?

DETECTIVE KIEFFER: Yes. We would like to view these films.

THE COURT: Do you have anything for me to view them with?

DETECTIVE KIEFFER: Yes.

THE COURT: Okay. Start. Is there an electrical outlet over here? It would be easier for Jerry to work over here.'

At this point, Detective Kieffer started to select motion picture films contained in closed boxes with photographs on the exterior of each box purporting to exemplify the nature of its contents. These boxes were then given to Justice Bestry for his inspection. Detective Kieffer selected approximately 24 films in this fashion and Justice Bestry, after viewing the photographs on the front of each box then decided whether or not to look further. Some of the films then were viewed by Justice Bestry.

After completion of the procedure, Justice Bestry made the following statement for the record: (See pp. 45 & 46, Transcript March 10,...

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