People v. One 1976 Ford Van

59 A.D.2d 1045, 399 N.Y.S.2d 799, 1977 N.Y. App. Div. LEXIS 14331

Opinion

Order unanimously affirmed, without costs. Memorandum: The definition of obscenity set forth in subdivision 9 of section 410.00 of the Penal Law is clearly unconstitutional (see Miller v California, 413 US 15, 25; Plaza Dev. Corp. v Vogt, 52 AD2d 396). Since the record does not support the People’s theory that the materials contained in the vehicle were "judicially declared to be obscene” pursuant to the standards set forth in section 235.00 of the Penal Law rather than subdivision 9 of section 410.00 of the Penal Law, there is no need to determine whether subdivision 9 is severable from the remainder of the statute. (Appeal from order of Oneida Supreme Court—summary judgment.) Present—Marsh, P. J., Moule, Cardamone, Simons and Dillon, JJ.