Opinion
July 7, 1988
Appeal from the Broome County Court, Patrick D. Monserrate, J.
Learned, Reilly Learned (Thomas E. Reilly of counsel), and William E. Seekford for appellant.
Gerald F. Mollen, District Attorney (Kevin P. Dooley of counsel), for respondent.
This appeal stems from defendant's sale of two sexually explicit magazines and resultant conviction of two counts of obscenity in the third degree (Penal Law § 235.05). An investigator with the District Attorney's office had purchased the magazines, classified by defendant's sales clerk as "hard core", on the pretext that they were to be a gag gift for a friend who was about to be married. The primary issue on appeal is the constitutionality of Penal Law § 235.00 (1) and § 235.05. In addressing that issue it bears repeating that statutes enjoy a presumption of constitutionality and that "`unconstitutionality must be demonstrated beyond a reasonable doubt'" (Maresca v Cuomo, 64 N.Y.2d 242, 250, appeal dismissed 474 U.S. 802, quoting Wiggins v. Town of Somers, 4 N.Y.2d 215, 218).
In seeking a reversal of its conviction, defendant asserts first that the definition of obscenity in the Penal Law is vague to the point of denying it due process as guaranteed by N Y Constitution, article I, § 6. The three-part definition of obscene found in Penal Law § 235.00 (1) is a codification of the criteria set forth in Miller v. California ( 413 U.S. 15, 24), and is very similar to the pre- Miller definition of obscene upheld on the void-for-vagueness attack launched in People v. Heller ( 33 N.Y.2d 314, 327-329). In our view, the current definition, as its predecessor was, is "easily interpreted as pertaining to hard core pornography" (supra, at 328). The current definition of obscene in Penal Law § 235.00 (1) differs from that approved in Heller in only two relevant respects: (1) it incorporates the yardstick of "contemporary community standards" as discerned by the "average person", and (2) it reinterprets "utterly without socially redeeming value" (Penal Law § 235.00 [former (c)], as added by L 1967, ch 791, § 32) as lacking "serious literary, artistic, political, and scientific value". The former change clearly makes the definition less vague by providing a reference point. As for the latter, the breadth of the terms employed works in a defendant's favor. Moreover, the very use of those terms by the United States Supreme Court in defining obscenity has been deemed authority for the proposition that they are not impermissibly vague (see, People v. Illardo, 48 N.Y.2d 408, 415).
Penal Law § 235.00 in relevant part reads: "1. `Obscene.' Any material or performance is `obscene' if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value."
Defendant also claims that New York's obscenity law violates free speech rights under N.Y. Constitution, article I, § 8. "[I]t is now established doctrine that obscene matter falls outside the scope of the First Amendment [to the US Constitution]" (supra, at 414, citing Roth v. United States, 354 U.S. 476, 491-492). Defendant would have us conclude that the parallel provision of N Y Constitution, article I, § 8 provides greater protection than its Federal counterpart. To justify such independent broader State protection, defendant must establish a historical basis for making the distinction being advanced or demonstrate that a fundamental State concern for doing so exists (see, People v Kohl, 72 N.Y.2d 191; see generally, People v. P.J. Video, 68 N.Y.2d 296, 302-303, cert denied 479 U.S. 1091). To that end, defendant points out that article I, § 8 first appeared in New York's Constitution in 1821, long before New York enacted legislation restricting dissemination of obscene material (L 1868, ch 430). But the same can be said of the corresponding Federal protection of free speech, which, as already noted, does not prevent regulation of hard core pornography. Moreover, it is quite plausible that it was unnecessary to regulate sexual indecency prior to the enactment of the respective constitutional provisions because strong and homogeneous cultural norms obviated any such need. Apart from the fact that no compelling historical showing has been made for extending "freedom of expression" protection to the sale and promotion of obscene material, we note also that selling and promoting obscenity has been a crime in New York for roughly 120 years, thus lending additional force to the presumption that the statute is constitutional (see, McKinney's Cons Laws of N.Y., Book 1, Statutes § 150 [b]).
Nor do we read the case law as signaling that fundamental fairness and justice concerns of the State warrant according pornographic material greater protection than already obtains under the US Constitution. The Court of Appeals on at least two occasions declined to fashion a free speech/obscenity demarcation different from the Federal standard (see, People v. Hollman, 68 N.Y.2d 202, 204, n 2; People v. Ferber, 57 N.Y.2d 256, 259). The cases cited to the contrary by defendant are inapposite. In Bellanca v. New York State Liq. Auth. ( 50 N.Y.2d 524, revd 452 U.S. 714, on remand 54 N.Y.2d 228, cert denied 456 U.S. 1006), the Court of Appeals held that a law prohibiting topless dancing in premises licensed by the State Liquor Authority was unconstitutional under both Federal and State free speech guarantees but received disparate treatment in the United States Supreme Court only because of the curtailing effect the 21st Amendment had with respect to the 1st Amendment (supra, 54 N.Y.2d, at 234-235). The case of People ex rel. Arcara v. Cloud Books ( 68 N.Y.2d 553) does construe New York's freedom of expression guarantee more broadly than its Federal counterpart, but it does so in the context of requiring the least restrictive means of abating a nuisance in a bookstore which was selling sexual but not obscene material and was itself innocent of the illegal acts committed on its premises by its patrons. Finally, People v. P.J. Video (supra) involves N.Y. Constitution, article I, § 12, the search and seizure provision, not section 8. In short, if there is a basis for giving obscenity more benign treatment under the N.Y. Constitution than the US Constitution, defendant has not demonstrated it. Indeed, it may be the case that New York views pornographic materials endured in other States offensive (cf., People ex rel. Arcara v. Cloud Books, supra, at 557; compare, e.g., Smith v United States, 431 U.S. 291, 294-295 [Iowa's treatment of pornography]).
A few of defendant's other contentions merit brief comment. Defendant argues that County Court erred by instructing the jury to determine obscenity based upon the community's "acceptance" of the particular materials, and maintains that the court should have used the word "tolerance" instead. While "tolerance" would have been a better choice (see, Red Bluff Drive-In v. Vance, 648 F.2d 1020, 1029, cert denied sub nom. Theatres W. v. Holmes, 455 U.S. 913), "acceptance" has been condoned (see, Smith v. United States, supra, at 297-298) and a fair reading of the jury charge conveys the properly broad meaning of acceptance. In any event, since defendant has not appealed the jury's finding that its magazines were substantively obscene, we must assume they are, and thus if there was error it was harmless.
Defendant quite correctly points out that the single sale of two magazines, though separately wrapped and priced, constituted but one count, not two, of promoting obscene material (see, CPL 40.20; see, Matter of Braunstein v. Frawley, 64 A.D.2d 772, 773) and that the counts should have been combined. Inasmuch as defendant was sentenced concurrently on each count, the error was harmless.
As for defendant's assertion that in an effort to demonstrate prevailing community standards it should have been permitted to introduce comparable magazines received in evidence at an earlier trial had in Broome County, wherein the jury acquitted a local bookstore of obscenity in the second degree, it suffices to note that defendant must establish a foundation demonstrating both similarity of the material and reasonable community acceptance (see, United States v. Womack, 509 F.2d 368, 375-377, cert denied 422 U.S. 1022) and, as County Court observed, the earlier not guilty verdict does not equate to acceptability, it simply says that the People did not prove every element of their case beyond a reasonable doubt.
We have considered defendant's remaining arguments and find them unconvincing.
MAHONEY, P.J., CASEY, LEVINE and MERCURE, JJ., concur.
Judgment modified, on the law, by combining the two counts upon which defendant was convicted into one count, and, as so modified, affirmed.