People v. Spicer

33 A.D.2d 652, 305 N.Y.S.2d 122, 1969 N.Y. App. Div. LEXIS 2952

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1969
• Status: Published

Opinion

Judgment unanimously affirmed except insofar as it convicts defendant on the fourth, sixth and seventh counts of the indictment, and as to those counts, judgment unanimously reversed and indictment dismissed. Memorandum: The agreed statement of facts contains no facts upon which we may pass upon the first count of the indictment (conspiracy). In the •posture in which the appeal comes to us we assume that appellant raises no issue as to the correctness of the verdict finding him guilty of that count. The evidence supports the findings impliet in the jury’s verdict that the material specified in the second, third and eighth counts of the indictment is obscene and that defendant knew the content and character thereof (Penal Law, §§ 235.00, 235.05, 235,10; People v. G. I. Distributors, 20 N Y 2d 104.) The material specified in the sixth and seventh counts consists of several photographs, each showing one nude male person. In our opinion they are not obscene (Manual Enterprises v. Day, 370 U. S. 478, 488) and defendant’s conviction on those counts should be reversed and such counts of the indictment should be dismissed. The fourth count of the indictment charges violation of section 235.05 of the Penal Law in promoting a book entitled Sadism and Masochism. In our opinion the book, which consists of a narrative illustrated by photographs of scantily clothed female persons, is not utterly lacking in redeeming social value and is not obscene. Defendant’s conviction of the fourth count of the indictment should, therefore, be reversed and the count dismissed. (Appeal from judgment • of Onondaga Supreme Court convicting defendant of conspiracy, fourth degree and seven counts of violation of section 235.05 of the Penal Law.) Present— Goldman, P. J., Marsh, Witmer, Bastow and Henry, JJ.