People v. Abronovitz

38 A.D.2d 681, 327 N.Y.S.2d 137, 1971 N.Y. App. Div. LEXIS 2778

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1971
• Status: Published

Opinion

Judgment unanimously affirmed except insofar as it convicts defendant on the thirteenth, fifteenth and fifty-third counts of the indictment and as to those counts, judgment unanimously reversed on the law and indictment dismissed. Memorandum: Defendants pleaded guilty to five counts of a 54-eount indictment charging them with promoting obscenity in violation of section 235.05 of the Penal Law. Whether the material is obscene is a question of law. (Jacobellis v. Ohio, 378 U. S. 184.) Some of the photographs contained in the magazines “ Nude Circle ” and “ Photo Field Trip ” depict scenes of close contact between nude males and females indicating sexual activity, consequently the material specified in the second and thirty-fifth counts is obscene and not constitutionally protected. (People v. G. I. Distributors, 20 N Y 2d 104, cert. den. 389 U. S. 905.) We have held similar photographs in magazines “ New Dawn ” and “ Teen Age Nudist ” to be obscene. (People v. Spicer, 33 A D 2d 652, cert. den. 397 U. S. 1042.) The material specified in the thirteenth and fifteenth counts consists of photographs of nude females, and that in the fifty-third count, photographs of nude males. No sexual activity is depicted in these photographs. Similar photographs of nude males and females have been held to be constitutionally protected. (Bloss v. Dykema, 398 U. S. 278, revg. 17 Mich. App. 318; Central Mag. Sales v. United States, 389 U. S. 50, revg. 373 F. 2d 633.) Defendants’ convictions on the thirteenth, fifteenth and fifty-third counts of the indictment should, therefore, be reversed and the counts dismissed. (Appeal from judgment of Monroe County Court convicting defendant of obscenity.) Present—Del Vecchio, J. P., Marsh, Witmer, Moule and Henry, JJ.