
    The People of the State of New York, Respondent, v. Louis Finkelstein and Louis Schaeffer, Appellants.
    Submitted March 1, 1962;
    decided May 17, 1962.
    
      
      Emanuel Redfield for Louis Finkelstein, appellant.
    I. Actual knowledge of the contents of the books by appellant was not established. (Smith v. California, 361 U. S. 147; People v. Schenkman, 20 Misc 2d 1093; Winters v. New York, 333 U. S. 507; Wieman v. Updegraff, 344 U. S. 183; Bailey v. Alabama, 219 U. S. 219; Western & Atlantic R. R. Co. v. Henderson, 279 U. S. 639; Adler v. Board of Educ., 342 U. S. 485; People v. Richmond County News, 11 AD 2d 799, 9 NY 2d 578.) II. There is no proof that appellant knew that the books were obscene. (Dreiser v. Lane Co., 183 App. Div. 773; People v. Richmond County News, 9 N Y 2d 578; Roth v. United States, 354 U. S. 476.)
    
      Emanuel Redfield for Louis Schaeffer, appellant.
    I. Actual knowledge by appellant must be established. (Smith v. California, 361 U. S. 147; People v. Schenkman, 20 Misc 2d 1093; Winters v. New York, 333 U. S. 507; Wieman v. Updegraff, 344 U. S. 183; Bailey v. Alabama, 219 U. S. 219; Western & Atlantic R. R. Co. v. Henderson, 279 U. S. 639; Adler v. Board of Educ., 342 U. S. 485; People v. Richmond County News, 11 A D 2d 799.) II. There is no proof that appellant knew that the books were obscene. (Dreiser v. Lane Co., 183 App. Div. 773; People v. Richmond County News, 9 N Y 2d 578; Roth v. United States, 354 U. S. 476; Halsey v. New York Soc. for Suppression of Vice, 234 N. Y. 1.) III. Defendant’s prosecution was under an ex post facto law, in violation of the Constitution of the United States. 
      (Calder v. Bull, 3 Dallas [3 U. S.] 386; Malloy v. South Carolina, 237 U. S. 180; Kring v. Missouri, 107 U. S. 221; Winters v. New York, 333 U. S. 507.) IV. The information does not charge a crime. {People v. Zambounis, 251 N. Y. 94; People v. Koffroth, 2 NY 2d 807; People v. McGuire, 5 N Y 2d 523; People v. Douglas, 12 A D 2d 194.) V. Section 1141 is vague and unconstitutional. (Roth v. United States, 354 U. S. 476; United States v. One Book Entitled Ulysses, 72 F. 2d 705; Parmelee v. United States, 113 F. 2d 729; Hannegan v. Esquire, 327 U. S. 146; Chaplinsky v. New Hampshire, 315 U. S. 568; De Jonge v. Oregon, 299 U. S. 353.) VI. The publications are not “ obscene ”. (Grove Press v. Christenberry, 276 F. 2d 433; Sunshine Book Co. v. Summerfield, 355 U. S. 372; Times Film Corp. v. City of Chicago, 355 U. S. 35; One, Inc., v. Olesen, 355 U. S. 371; Kingsley Pictures Corp. v. Regents, 360 U. S. 684; Yates v. United States, 354 U. S. 298.)
    
      Frank S. Hogan, District Attorney (Peter J. O’Connor and H. Richard Uviller of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. (Roth v. United States, 354 U. S. 476; People v. Richmond County News, 9 N Y 2d 578; Grove Press v. Christenberry, 276 F. 2d 433; Duval v. Barnaby, 75 App. Div. 155; Smith v. California, 361 U. S. 147; People v. Finkelstein, 9 N Y 2d 342; People v. Shapiro, 4 N Y 2d 597; People v. Bretagna, 298 N. Y. 323; People v. Cummings, 123 Cal. 269; State v. Lintner, 141 Kan. 505; Rand v. Commonwealth, 176 Ky. 343; State v. Drew, 110 Minn. 247; People v. Sugarman, 216 App. Div. 209, 243 N. Y. 638.) II. The informations sufficiently charged a violation of subdivision 1 of section 1141 of the Penal Law. (People v. Zambounis, 251 N. Y. 94; People v. Koffroth, 2 N Y 2d 807; People v. McGuire, 5 NY 2d 523; People v. Douglas, 12 A D 2d 194.) III. The scienter requirement of subdivision 1 of section 1141 of the Penal Law is not ex post facto as to these defendants; the statute is not vague and unconstitutional. (People v. Finkelstein, 9 N Y 2d 908; Winters v. New York, 333 U. S. 507; Lanzetta v. New Jersey, 306 U. S. 451; Smith v. California, 361 U. S. 147; Roth v. United States, 354 U. S. 476.)
   Froessel, J.

After a joint trial, each of the defendants was convicted of the crime of violating section 1141 of the Penal Law, which in relevant part provides: “ A person who sells * * * or has in his possession with intent to sell * any obscene * * * book * * * [i]s guilty of a misdemeanor ’ ’.

When these cases were before us last year, we held that subdivision 1 of said section 1141 required proof of scienter, and, thus construed, the statute was not violative of the Constitution of the United States (People v. Finkelstein, 9 N Y 2d 342). We reversed the convictions and ordered new trials, however, “ so that, although the People have the burden of proof, defendants may have an opportunity to testify or offer proof, if they desire, in regard to the presence of salacious literature in their possession for sale ” (id., at p. 346).

At the new trial, the only witness was Detective John Dell. He stated that at about 2:00 p.m. on December 30, 1958 he entered the Times Square Book Bazaar and observed defendant Schaeffer at a cash register. Dell found on a shelf a copy of a book entitled “ Queen Bee ” and a copy of a book called “ Garden of Evil”. Dell showed the books to Schaeffer and inquired as to their cost. The latter replied they were $5 each, but he could buy them both for $9. Dell purchased the books, and thereupon placed Schaeffer under arrest. Dell’s subsequent search revealed 70 copies of Garden of Evil” and 40 of “ Queen Bee ” under the counter. He told Schaeffer, who had identified himself as manager of the store, that the “ books were pornographic ”, to which the latter replied “ ‘ I have seen much worse than these ’ ”.

At about 2:20 p.m. on the same afternoon Dell entered a bookstore at 251 West 42nd Street. A Mr. Kleinberg (since deceased) was standing on a platform near the cash register. On a shelf Dell found copies of “ Garden of Evil ” and “ Queen Bee ”. Kleinberg told the detective he could purchase them for $9. Dell did so and placed Kleinberg under arrest. Presently defendant Finkelstein entered the store, and identified himself as its owner. Dell told him “ ‘ You know those two books are pornographic ’ ”, to which defendant replied “ ‘ It all depends on how you look at it. I have seen much worse than this. ’ ” Dell arrested Finkelstein, and his search revealed about 7 copies of Garden of Evil ” and 8 copies of Queen Bee ”.

Defendants neither testified nor called any witness in their behalf. They chose instead to rely on points of law raised by motions to dismiss the informations, and motions addressed to the proof. The three-Jndge Special Sessions Bench unanimously denied all motions, and found defendants guilty as charged. In its opinion, the court found, among other things, that the books were ‘ ‘ in fact, 1 hard-core pornography ’ ” as defined in our recent decision in People v. Richmond County News (9 N Y 2d 578) and that each defendant possessed the requisite knowledge regarding the books he sold. The Appellate Division unanimously affirmed the convictions without opinion.

Both defendants presently contend that the proof fails to establish scienter. In our opinion, however, scienter— ‘1 knowledge by * * * [defendants] of the contents of the book[s] ” (Smith v. California, 361 U. S. 147, 149)—was sufficiently proven beyond a reasonable doubt. As the Supreme Court of the United States said in Smith v. California (supra, p. 154): “ Eyewitness testimony of a bookseller’s perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial. ’ ’ The voluntary admission on the part of each defendant that he had seen worse books than those here involved, the lurid statements on the covers, the $5 selling price boldly stamped on the front cover of each paper-covered book, taken together, warranted the trial court’s conclusion that scienter was established beyond a reasonable doubt.

While Finkelstein challenges only the proof regarding scienter, Schaeffer urges several additional points for reversal. With regard to his claims that section 1141 is unconstitutional, and that the information is insufficient because it does not charge scienter, both points were decided to the contrary in the previous appeal (People v. Finkelstein, 9 N Y 2d 342, supra; see Winters v. New York, 333 U. S. 507, 520).

Schaeffer next urges that he was prosecuted under an ex post facto law adopted by this court on the previous appeal. The simple answer to this contention is that we did not legislate scienter into section 1141; rather we interpreted that section to be “ instinct with the idea of scienter (People v. Finkelstein, 9 N Y 2d 342, 344, supra). We noted, moreover (pp. 345-346), quoting from Winters v. New York (333 U. S. 507, 514, supra), that defendant “ can be charged ‘ with knowledge of the scope of subsequent interpretation ’

Schaeffer’s contention that the books involved are not obscene is untenable. Having made “ an independent constitutional appraisal” of the books (People v. Richmond County News, 9 N Y 2d 578, 580, supra), we find ourselves in agreement with the courts below that the books are definitely obscene (id.; Roth v. United States, 354 U. S. 476). Each book contains descriptions of sexual experiences, with emphasis on the abnormal. They focus ‘ ‘ predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification” (People v. Richmond County News, 9 N Y 2d 578, 587, supra). They unquestionably meet the Roth test.

Finally, Schaeffer suggests that the trial court erred in refusing to receive evidence allegedly bearing upon current community standards regarding obscenity. On cross-examination of Detective Dell, counsel established that during the year preceding defendants’ arrest, Dell had seen copies of certain other named publications in bookstores and on magazine stands in New York City. Counsel offered a book and magazines in evidence “ to indicate to your Honors what is the current standard in the community, of literature, and by comparing them you will see whether or not they are permissible ’ ’.

In our opinion, the proffered evidence was properly excluded, as it was irrelevant to the issue of whether or not the two books sold by defendants in this case were obscene. The fact that certain other and different publications were seen in bookstores and on magazine stands in New York City is no indication that they were sold, or read, or that to the average person applying contemporary community standards (Roth v. United States, supra) they were not obscene.

The judgments of conviction should be affirmed.

Chief Judge Desmond (concurring).

I join in Judge Froessbl’s opinion for affirmance but I would go further.

I would hold that the alleged error in refusing to accept evidence as to the sale of other publications was not presented either to the Appellate Division or to this court. Defendant Finkelstein mentioned no such matter in his brief in either court. Defendant Schaeffer at one point in his brief in each court included in a list of alleged issues that: ‘ ‘ The court refused to accept evidence of community standards.” However, this “ issue ” was not only not argued in the Schaeffer brief in the Appellate Division or in this court but was not otherwise mentioned in either brief. The prosecutor, finding in defendants’ briefs no further presentation of the “ point ”, paid no attention to it.

If the question were before us I would agree with Judge Fboessbl that there was no error. These books were obscene by any conceivable objective test and it could not be a defense to their sale, or otherwise relevant, that some other publications of vaguely similar content were being sold at other shops in New York City. All three opinions of this court in People v. Richmond County News (9 N Y 2d 578) seem to agree that if a publication is on its face and without doubt obscene its sale may be punished criminally regardless of how many other people sell it or buy it. Judge Fuld’s opinion in Richmond County News tells us that the test of the obscene “ is not in the tendency or appeal of the material, but rather in its content objectively appraised” (p. 587). The concurring opinion for reversal in that case says that a conviction may stand if the book or magazine includes “ the extreme form of gross and all-intentioned sexuality which American statutes and courts may constitutionally punish as criminal ’ ’ and that 11 The inquiry for the court, therefore, is whether the publication is so entirely obscene as to amount to ‘ hard-core pornography ’ ” (p. 589). The dissenting opinion in Richmond County News refers (p. 592) to ‘ ‘ material which all would concede is shockingly and unquestionably obscene ” and “ which the average person would unhesitatingly condemn as obscene and lewd ”. The writers of those three opinions were all saying the same thing, that is, that there are publications so vile that no contemporary standards anywhere could justify them. The same thought was expressed by the United States Supreme Court’s opinion in Kingsley Books v. Brown (354 U. S. 436, 440) where the court referred to “ the primary requirements of decency” and to booklets “incontestably found to be obscene ”. Where there is conclusive proof of the sale of that sort of thing by one who knows what he is selling, it is absurd for the court to take proof from either party of other sales of other dirty books by other vendors. In borderline or arguable cases there may be a right in prosecution or defense, or both, to use testimony of qualified persons but I assume we are leaving that question open despite what appears to be a holding of this court in 1884 in People v. Muller (96 N. Y. 408, 412) that opinion evidence is not receivable on an issue of obscenity or no. First Amendment considerations, so exhaustively litigated in recent years in obscenity cases, were not even mentioned in the Muller opinion and the constitutional and other aspects of the law of obscenity have been extensively revised in the intervening years.

I would vote to affirm.

Van Voobhis, J. (concurring).

In ascertaining what are contemporary community standards, I agree with Judge Dye that other books and publications may be compared which are currently sold by bookstores to the public. This aspect was considered in Smith v. California (361 U. S. 147) in the concurring opinions of Justices Fbankeubteb and Hablan. Justice Fbankeubteb stated:

Since the law through its functionaries is ‘ applying contemporary community standards ’ in determining what constitutes obscenity, Both v. United States, 354 U. S. 476, 489, it surely must be rational, and therefore relevant to the issue- of obscenity, to allow light to be shed on what those ‘ contemporary community standards ’ are. Their interpretation ought not to depend solely on the necessarily limited, hit-or-miss, subjective view of what they are believed to be by the individual juror or judge. * * *
For the reasons I have indicated, I would make the right to introduce such evidence a requirement of due process in obscenity prosecutions ” (id., pp. 164—167).

Justice Hablan, after stating his agreement with Justice Fbankeubteb, added (pp. 171-172):

“ The community cannot, where liberty of speech and press are at issue, condemn that which it generally tolerates. This being so, it follows that due process — ‘ using that term in its primary sense of an opportunity to be heard and to defend [a] * * * substantive right,’ * * * requires a State to allow a litigant in some manner to introduce proof on this score. * * *
‘£ However, I would not hold that any particular kind of evidence must be admitted, specifically, that the Constitution requires that oral opinion evidence by experts be heard. There are other ways in which proof can be made, as this very case demonstrates. Appellant attempted to compare the contents of the work with that of other allegedly similar publications which were openly published, sold and purchased, and which received wide general acceptance.”

The American Law Institute’s Model Penal Code (Tentative Draft No. 6 [1957], § 207.10, subd. [2]) provides to the same effect.

In my view the other publications offered in evidence might well have been admitted for whatever aid they might have supplied to the court in discerning what are contemporary community standards, but this is also a subject of judicial notice. As stated in Wigmore, Evidence (3d ed., vol. 9, § 2567, p. 535): That a matter is judicially noticed means merely that it is taken as true without the offering of evidence by the party who would ordinarily have done so. This is because the Court assumes that the matter is so notorious that it will not be disputed. But the opponent is not prevented from disputing the matter by evidence, if he believes it disputable. It is true that occasionally a Court is found declaring a thing judicially noticed and at the same time refusing to listen to evidence to the contrary ; but usually this is in truth laying down a new rule of substantive law by declaring certain facts immaterial ’ ’.

The practice is not uncommon of taking evidence concerning matters within the realm of judicial notice so as to furnish the judicial mind with more exact details of general knowledge which Judges are presumed to know already, the contents of an almanac, for example (Case v. Perew, 46 Hun 57, affd. 122 N. Y. 665).

In my view it is open to a court to examine other books and publications than those subject to the criminal charge to inform itself concerning what are contemporary community standards. An examination of the two publications which were offered and excluded leads to the conclusion that they would not have altered the determination that the material involved in this prosecution is obscene. Consequently their exclusion was not prejudicial, with the consequence that the judgments of conviction should be affirmed,

Dye, J. (dissenting).

I agree that in each case the information is sufficient to state a violation of section 1141 of the Penal Law, within the meaning of our prior decision, People v. Finkelstein (9 N Y 2d 342), and that on the retrial the proof adduced by the People was sufficient to impose upon the defendants the burden of going forward to overcome it.

I cannot agree that the convictions should stand.

When the defendants attempted to meet their burden by offering proof that other books and magazines of similar content were being freely and openly sold, and this according to the People’s witness Dell, in many other stores in the community, for the purpose of affording a basis of comparison for determining permissibility of sale, the court summarily rejected the offer as improper and irrelevant.

In so ruling, it is quite clear that contemporary community standards were not considered in arriving at the verdict. It may well be that such offer, if allowed, would not have changed the court’s conclusion as to the obscene character of the books involved, but even so that does not warrant closing the door on a possible defense. The criminality of the act was thus made to depend upon whether a [judge] may think it reasonable ” (Tozer v. United States, 52 F. 917, 919; People v. Firth, 3 N Y 2d 472). The Trial Judges “ established] a standard of their own to be used as a basis to render the section possible of execution ” (United States v. Cohen Grocery Co., 255 U. S. 81, 91).

Even if I were to assume arguendo that the court below took judicial notice of the contemporary standards of the community, I would agree with Justices Frankfurter and Hablan of the United States Supreme Court that the First and Fourteenth Amendments to the United States Constitution require a trial court ‘ ‘ to allow light to be shed on what those ‘ contemporary community standards ’ are ” (Smith v. California, 361 U. S. 147, 165, concurring opinion; see 9 Wigmore, Evidence [3d ed.], § 2567). The rulings of the trial court take on even greater significance when it is recognized that under the prevailing law in this State (see People v. Muller, 96 N. Y. 408) expert testimony is likewise inadmissible in an obscenity prosecution. The summary exclusion by the court of relevant evidence against the charges for the reason that ‘1 That is not the way standards are made ” deprived these defendants of the fair trial to which they were entitled. Such exclusion had the effect of barring all evidence relating to community standards. At the very least, they should have been allowed to lay a basis for comparison. The rulings, as made, rendered these convictions constitutionally defective since “ The community cannot, where liberty of speech and press are at issue, condemn that which it generally tolerates.” (Smith v. California, supra, p. 171.)

I dissent and vote to order a new trial as to each defendant.

Judges Burke and Foster concur with Judge Froessel ; Chief Judge Desmond and Judge Van Voorhis concur in separate opinions; Judge Dye dissents in an opinion in which Judge Fund concurs.

Judgments affirmed.  