Opinion
November 10, 1960
Judgments of conviction unanimously affirmed. It is not clear that People v. Engel ( 7 N.Y.2d 1002) determined that section 1141 of the Penal Law in its present form is unconstitutional. The decision is supportable by the absence in that case of any proof which would supply the element of scienter. In the absence of further clarification by the highest court of the State the statute may be construed to require scienter and thus satisfy the requirements laid down in Smith v. California ( 361 U.S. 147). People v. Shapiro ( 6 A.D.2d 271) is not dispositive of the question before this court because the decision is not controlling in this Department and because the decision is not one in the highest court of the State (cf. Smith v. California, supra, p. 149, especially footnote 2). Assuming the validity of the statute the books in question come under its condemnation.
Concur — Botein, P.J., Breitel, McNally and Stevens, JJ.