People v. Smith

252 A.D. 622, 300 N.Y.S. 651, 1937 N.Y. App. Div. LEXIS 5744

Opinion

Per Curiam.

The defendant was convicted of selling an obscene book, and displaying an indecent picture, in violation of sections 1141 and 1141-a of the Penal Law,

The book is a collection of eighty-eight photographs, mostly of female figures in the nude. It was displayed in the window of a store managed by the defendant, where artists’ supplies and materials were sold. No attempt was made, however, to confine the sale of the book to those interested in the graphic arts. The defendant conceded that the book was offered for sale to all prospective purchasers indiscriminately. It was displayed in a window facing on the highway in such a manner as to be open to view to the young as well as the old, to the strong minded as well as the weak, but particularly to those the statute was expressly designed to protect — the young and the impressionable.

The photograph exposed in the window was that of a woman reclining, in the nude, on what appears to be a couch, with the lighting effect so arranged that the woman’s bust and private parts were brought into prominence, and the woman so posed that unquestionably the display was intended to be that of a “ provocative picture,” (People v. Fellerman, 243 App. Div. 64; affd., 269 N. Y. 629.) Under such circumstances the conviction was justified.

The judgment should be affirmed.

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.

Judgment unanimously affirmed.