People v. AJS Merchandising, Inc.

162 A.D.2d 990, 559 N.Y.S.2d 52, 1990 N.Y. App. Div. LEXIS 9739

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1990
• Status: Published

Opinion

Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendants appeal from a judgment convicting them of one count of obscenity in the third degree, stemming from their sale of a videotape entitled "Sex Wish” to a police officer. Defendants were charged in the indictment with illegally promoting material depicting or describing "sexual intercourse, sodomy, masturbation and/or lewd exhibition of genitals.” However, the court charged the jury with respect to the entire definition of obscenity set forth in Penal Law § 235.00 (1), which also includes sexual bestiality, sadism, masochism and excretion. That was error. The People were limited to trying defendants on the charges in the indictment (see, People v Grega, 72 NY2d 489, 496). Preservation is not required because defendants’ constitutional right to be convicted only of those crimes and upon those theories charged in an indictment is nonwaivable (People v Rubin, 101 AD2d 71, 77). This error cannot be considered harmless because the videotape depicted sadistic sexual behavior including bondage, torture and execution (cf., People v Grega, supra, at 497). We cannot say that there is no reasonable possibility that the error might have contributed to defendants’ conviction (see, People v Crimmins, 36 NY2d 230, 237). (Appeal from judgment of Niagara County Court, DiFlorio, J.—obscenity, third degree.) Present— Doerr, J. P., Boomer, Green, Pine and Lowery, JJ.