People v. Andrek

Appellate Division of the Supreme Court of New York

People v. Andrek

50 A.D.2d 637, 375 N.Y.S.2d 40, 1975 N.Y. App. Div. LEXIS 12449

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 6, 1975

StatusPublished

This text of 50 A.D.2d 637 (People v. Andrek) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Andrek, 50 A.D.2d 637, 375 N.Y.S.2d 40, 1975 N.Y. App. Div. LEXIS 12449 (N.Y. Ct. App. 1975).

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Opinion

— Appeal from a judgment of the County Court of St. Lawrence County, rendered July 30, 1973, upon a verdict convicting the defendant of the crime of obscenity in the second degree. Among other things, the defendants contend that the trial court erred in charging the jury that the appropriate standard to judge the obscenity of a movie exhibited by defendants on July 14, 1972 was the "community attitudes in St. Lawrence County”. The District Attorney has conceded that the charge was error pursuant to People v Heller (33 NY2d 314) and People v Nitke (45 AD2d 543) and, further, that it is reversible error. The defendants have accepted the concession and submitted the case without argument. The charge is erroneous and reversible (People v Heller, supra; People v Nitke, supra; cf. People v Crimmins, 36 NY2d 230). Upon the retrial herein, the court should charge section 235.00 (subd 1, par [c]) of the Penal Law as it existed at the time of the alleged exhibition and without the prosecution’s more favorable interpretation under Miller v California (413 US 15). (Cf. Bouie v City of Columbia, 378 US 347; People v Heller, supra.) Judgment reversed, on the law, and a new trial ordered. Herlihy, P. J., Greenblott, Kane, Main and Reynolds, JJ., concur.

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— Appeal from a judgment of the County Court of St. Lawrence County, rendered July 30, 1973, upon a verdict convicting the defendant of the crime of obscenity in the second degree. Among other things, the defendants contend that the trial court erred in charging the jury that the appropriate standard to judge the obscenity of a movie exhibited by defendants on July 14, 1972 was the "community attitudes in St. Lawrence County”. The District Attorney has conceded that the charge was error pursuant to People v Heller (33 NY2d 314) and People v Nitke (45 AD2d 543) and, further, that it is reversible error. The defendants have accepted the concession and submitted the case without argument. The charge is erroneous and reversible (People v Heller, supra; People v Nitke, supra; cf. People v Crimmins, 36 NY2d 230). Upon the retrial herein, the court should charge section 235.00 (subd 1, par [c]) of the Penal Law as it existed at the time of the alleged exhibition and without the prosecution’s more favorable interpretation under Miller v California (413 US 15). (Cf. Bouie v City of Columbia, 378 US 347; People v Heller, supra.) Judgment reversed, on the law, and a new trial ordered. Herlihy, P. J., Greenblott, Kane, Main and Reynolds, JJ., concur.

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Bluebook (online)

50 A.D.2d 637, 375 N.Y.S.2d 40, 1975 N.Y. App. Div. LEXIS 12449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-andrek-nyappdiv-1975.

Opinion

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