State v. Napriavnik

• Decision Date: 03 February 1977
• Citation: 370 A.2d 525,147 N.J.Super. 36
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Thomas NAPRIAVNIK et al., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 36

147 N.J.Super. 36

370 A.2d 525

STATE of New Jersey, Plaintiff-Respondent, v. Thomas NAPRIAVNIK et al., Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 10, 1977.

Decided Feb. 3, 1977.

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

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

Before Judges BISCHOFF, MORGAN and RIZZI.

PER CURIAM.

Defendants appeal their convictions, following a jury verdict, of three counts of possessing obscene materials with intent to distribute and one count of selling an obscene motion picture film. N.J.S.A. 2A:115--2. The jury acquitted all three defendants of two counts of distribution or selling specified obscene motion pictures, magazines and newspapers.

The State's evidence at trial disclosed that Investigator Michael Sasso of the Morris County Prosecutor's office went to the 'Adult Book Store' on Route 46 in Roxbury Township, New Jersey, to make some purchases at the direction of Chief Detective Sweedy. Upon arriving he was waited on by defendant Thomas Napriavnik who sold him two films, 'California Erotics,' 'Wet Dream No. 10' and 'Party Girl, Statutory Rape,' and a magazine, 'Girlfriends Annual.' The purchase of these materials was made the subject of the first two counts of the indictment, count 1 charging Napriavnik and the other individual defendants, principals of defendant corporate proprietor, with possessing them with intent to distribute, and count 2 with distributing or selling them to Sasso.

Sasso returned to the store on the next day, November 15, 1974, and purchased from Napriavnik two magazines, 'Make All Deliveries To The Rear' and 'Focus on Housewives.' These purchases were made the subject of counts 3 (possession) and 4 (distribution or sale) of the indictment. On November 18, 1974 he purchased from Napriavnik another film, 'Coffee, Tea or Me,' the subject of count 6, charging sale of the film. Later that day Sasso participated in the execution of a search warrant at the store from which 1100 magazines, 123 films and 90 'newspaper type papers' were seized. Among these were one film, 'Soul Food,' one magazine, 'Making it Big,' and three newspapers, 'Pleasure,' 'Pussy Cat' and 'Screw,' possession of which with intent to distribute was charged in count 5. Sasso described all items referred to in the indictment, except one ('Party Girl, Statutory Rape,' counts 1 and 2), as dealing with homosexual themes.

Further evidence disclosed that defendant Hendricks was vice-president of defendant Ed-Jon Corporation and that the corporation had leased the premises through defendant Irving Wolbert, whose name appeared on the lease.

Napriavnik was the only defense witness. He denied that Sasso ever visited the store prior to his arrest and denied all sales to him. He also denied specific knowledge of what was depicted on the films referred to in the indictment, although he admitted general knowledge as to their contents. Similarly, with respect to the magazines he stated that since they were wrapped in cellophane he lacked specific knowledge as to their contents.

The jury found all defendants guilty with respect to counts 1, 3 and 5 charging possession of the described materials with intent to distribute them and guilty with respect to count 6 charging sale of one film to Sasso. Defendants were acquitted of the counts charging distribution or sale of the materials described therein. By special verdict, the jury found the following materials to be obscene: 'Party Girl, Statutory Rape' (count 1), 'Focus on Housewives' (count 3), and 'Coffee, Tea or Me,' 'Soul Food,' 'Pleasure' and 'Pussy Cat' (count 5).

Defendants' post-trial motions for acquittal or a new trial were denied. The following grounds, taken from defendants' brief, are asserted by defendants as the basis for their contention that the convictions should be vacated and the indictment dismissed:

I. Distribution of powers.

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.

III. 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 Napriavnik.

IV. 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.

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

VI. Court erroneously submitted the issue of obscenity to the jury on a Res ipsa loquitur approach.

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

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

IX. Court erred in charging the defendants, Wolbert, Hendricks and Ed-Jon Corporation, could be guilty of aiding and abetting.

X. Massive search and seizure without a prior adversary hearing requires the setting aside of the verdict.

XI. Failure to instruct the Grand Jury of the component elements of N.J.S.A. 2A:115--1.1 Et seq., as determined by the New Jersey Supreme Court, deprives these defendants of their right to due process of law.

XII. Jury verdict was against the weight of the evidence.

Points I and II both center about defendants' argument that the New Jersey Supreme Court overstepped the proper bounds of its authority and jurisdiction when it decided State v. DeSantis, 65 N.J. 462, 323 A.2d 489 (1974); defendants seem to be asking this court to overrule that case. Clearly, these arguments, whatever their merit, are addressed to the wrong court and we decline comment on defendants' lengthy discourse on the subject. Silagy v. State, 105 N.J.Super. 507, 510, 253 A.2d 478 (App.Div.1969), certif. den. 54 N.J. 506, 257 A.2d 106 (1969).

Point IV concerns itself with a discerned deficiency in the indictment, a failure to allege defendants' knowledge of the obscene character of the materials they were charged with possessing and selling. The contention is without merit. Each count charges that defendants either 'knowingly' possessed or 'knowingly' sold or distributed obscene materials; scienter was sufficiently alleged. N.J.S.A. 2A:115--2.2(e); State v. Hudson Cty. News Co., 41 N.J. 247, 257--58, 196 A.2d 225 (1963); Hamling v. United States, 418 U.S. 87, 119--24, 94 S.Ct. 2887, 2908--2911, 41 L.Ed.2d 590, 622--23 (1974).

Points V and VI focus upon defendants' contention that the State's case was insufficient for jury consideration because of the absence of expert proof that the materials in question violated contemporary community standards and appealed to the prurient interest of the average person. Defendants contend that without such proof, the case was submitted to the jury on a theory akin to the tort concept of Res ipsa loquitur, casting upon defendants the burden of exculpating themselves in violation of basic tenets of criminal procedure. Defendants do not, of course, contend that the charge included instructions on Res ipsa loquitur (it didn't); they merely contend that without expert proof, submission of an obscenity case to a jury has the same effect.

Keuper v. Wilson, 111 N.J.Super. 489, 268 A.2d 753 (Ch.Div.1970), cited by defendants, required expert proof describing contemporary community standards and evaluating material as being obscene or not obscene. ¹ Keuper was, however, decided at a time when New Jersey was applying national standards against which to measure the obscenity of given materials, and were that standard to be followed, there would be considerable merit to the contention that expert proof is necessary; knowledge of national standards for evaluating allegedly obscene matter is normally confined to the expert and without the scope of the normal factfinder's competence.

Notwithstanding State v. Hudson Cty. News Co., supra, which held that obscenity is to be evaluated in accordance with national standards, we are of the view that the logic of State v. DeSantis, supra, compels us to conclude that local standards are to be applied and that, accordingly, expert proof concerning those standards, although admissible, is no longer an essential attribute of a State's case on obscenity.

The recent history of the law of obscenity in New Jersey is characterized by an ongoing attempt to divine the outer perimeter of First Amendment protection afforded by the shifting views of the United States Supreme Court in connection with obscenity prosecutions. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). As early as 1963, the legislative intent to forbid obscene matter to the fullest extent permissible under the First Amendment was discerned. State v. Hudson Cty. News Co., supra, 41 N.J. at 265, 196 A.2d 225. The accuracy of that assessment of intent was confirmed when in 1971 the Legislature passed L.1971, c. 449 (N.J.S.A. 2A:115--1.1) which, in effect, abandoned the three-pronged test set forth in L.1966, c. 199 and reverted to the definition of obscenity in L.1962, c. 166. The statement attached to the bill clearly expressed the intent discerned by our Supreme Court in State v. Hudson Cty. News Co., supra. See State v. DeSantis, supra, 65 N.J. at 466, 323 A.2d 489 see also, N.J.S.A. 2A:115--1.1a.

Hence, the extent of protection afforded allegedly obscene material under New Jersey law, which depends to a large degree upon the standard to be applied in determining whether such matter falls within or without First Amendment protection, was determined by federal constitutional law as declared by...