
    The People of the State of New York, Respondent, v. Charles Kirkpatrick and Peter Dargis, Appellants, and Peter Martin et al., Defendants.
    Argued January 3, 1973;
    decided March 15, 1973.
    
      
      jRobert P. Levine for appellants.
    I. The obscenity presumption of section 235.10 (subd. 1) of the Penal Law violates defendants’ Federal and New York State constitutional guarantees of due process and free speech. (Perez v. Ledesma, 401 U. S. 82; Dyson v. Stein, 401 U. S. 200; Ginsberg v. New York, 390 U. S. 629; Smith v. California, 361 U. S. 147; Speiser v. Randall, 357 U. S. 513; Tot v. United States, 319 U. S. 463; United States 
      v. Romano, 382 U. S. 136; Leary v. United States, 395 U. S. 6; People v. Terra, 303 N. Y. 332; Bailey v. Alabama, 219 U. S. 219.) II. Zap No. 4 is not obscene under section 235.00 of the Penal Law and the constitutional standards established by the United States Supreme Court. (Roth v. United States, 354 U. S. 476; Ginzburg v. United States, 383 U. S. 463; Mishkin v. New York, 383 U. S. 502; Redrup v. New York, 386 U. S. 767; People v. Richmond County News, 9 N Y 2d 578; Jacobellis v. Ohio, 378 U. S. 184; Niemotko v. Maryland, 340 U. S. 268; Larkin v. Putnam’s Sons, 14 N Y 2d 399; United States v. A Motion Picture Entitled “I Am Curious — Yellow”, 404 F. 2d 196; Kingsley Pictures Corp. v. Regents, 360 U. S. 684.)
    
      Frank S. Hogan, District Attorney {Harold Roland Shapiro of counsel), for respondent.
    I. The People proved beyond a reasonable doubt defendants ’ violation of the obscenity statute. (People v. G. I. Distrs., 20 N Y 2d 104, 389 U. S. 905; People v. Richmond County News, 9 N Y 2d 578; People v. Weingarten, 55 Misc 2d 681; Ginzburg v. United States, 383 U. S. 463; Brown v. Kingsley Books, 1 N Y 2d 177; United States v. Kennerley, 209 F. 119; People v. Fritch, 13 N Y 2d 119; United States v. A Motion Picture Entitled “I am Curious — Yellow”, 404 F. 2d 196.) II. The presumption (Penal Law, § 235.10, subd. 1), as applied, is constitutional. (Tot v. United States, 319 U. S. 463; Smith v. California, 361 U. S. 147; Speiser v. Randall, 357 U. S. 513; Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537; People v. Finkelstein, 9 N Y 2d 342; People v. Terra, 303 N. Y. 332, 342 U. S. 938; Adams v. New York, 192 U. S. 585; Yee Hem v. United States, 268 U. S. 178; United States v. Gainey, 280 U. S. 63; People v. McCaleb, 25 N Y 2d 394.)
    
      Horace S. Manges and Marshall C. Berger for Association of American Publishers, Inc., amicus curiae.
    
    I. The presumption created by section 235.10 (subd. 1) violates the due process clauses of the Federal and State Constitutions. (Leary v. United States, 395 U. S. 6; United States v. Gainey, 380 U. S. 63; United States v. Romano, 382 U. S. 136; Turner v. United States, 396 U. S. 398.) II. Section 235.10 (subd. 1) is an unconstitutional abridgment of freedom of the press. (Marcus v. Search Warrant, 367 U. S. 717; Bantam Books v. Sullivan, 372 U. S. 58; Quantity of Books v. Kansas, 378 U. S. 205; Pocket Books v. 
      Dell Pub. Co., 49 Misc 2d 252; Rosemont Enterprises v. Random House, 366 F. 2d 303; Speiser v. Randall, 357 U. S. 513; Smith v. California, 361 U. S. 147.) III. Except in dicta, section 235.10 (subd. 1) has never been held to be constitutional by any court; the two direct holdings support unconstitutionality. (Overstock Book Co. v. Barry, 436 F. 2d 1289; Perez v. Ledesma, 401 U. S. 82; Dyson v. Stein, 401 U. S. 200; Byrne v. Karalexis, 401 U. S. 216; Ginsberg v. New York, 390 U. S. 629; Grove Press v. Evans, 306 F. Supp. 1084.)
    
      Paul G. Chevigny for New York Civil Liberties Union, amicus curiae.
    
    I. The presumption of knowledge in the obscenity statute is unconstitutional on its face. (Smith v. California, 361 U. S. 147; New York Times Co. v. Sullivan, 376 U. S. 254; Speiser v. Randall, 357 U. S. 513.) II. The presumption of knowledge, as applied in this ease, is unconstitutional. (People v. Weingarten, 50 Misc 2d 635, 55 Misc 2d 681, 25 N Y 2d 639; People v. Hartman, 23 N Y 2d 778; People v. Finkelstein, 11 N Y 2d 300.)
   Breitel, J.

A so-called adult comic magazine called Zap No. 4 has been found obscene and for its sale two booksellers in separate cases tried together have been convicted of a violation of section 235.05 of the Penal Law. Each of the defendants was fined $500 and if the fine was not paid to serve 90 days in jail. The fines were paid. The Appellate Term affirmed, and defendants appeal by leave of an Associate Judge of this court.

The fact of obscenity need not be dwelt upon at this time. Most of this court agree with the courts below that the material sold was obscene, and its nature was discussed by the trial court in its elaborate opinion determining the case. What remains at issue, with disagreement in this court, is whether the record contained sufficient evidence to establish that the booksellers knew of the obscene contents and by way of alternative ratio decidendi whether the statutory presumption that a seller of obscene materials knows the contents of what he sells is valid (Penal Law, § 235.10, subd. 1).

The trial court both found actual knowledge and applied the statutory presumption. After having completed in its opinion its treatment of the statutory presumption it detailed the testimony of the booksellers in which they admitted personally selling many copies of the magazine. It also noted that each defendant had ordered and reordered the magazine when a new issue came out or on exhaustion of the current supply. It wrote: Such facts are similar to those presented in People v. Weingarten (50 Misc 2d 635, 640, affd. 55 Misc 2d 681; revd. on other grounds 25 N Y 2d 639) and where held there, as I hold the stated facts here, to constitute sufficient knowledge by the defendants, Dargis and Kirkpatrick, of the contents and character of Zap No. 4, although they may have never read through it. ” (64 Misc 2d 1055, 1071.) Assuming that one may fail to read the sentence in question as conveying the meaning suggested here, reference to the Weingarten case, cited by the trial court, negates any straining at ambiguity. The Weingarten case involved no presumption and the trial court there weighed the evidence to reach the inference of scienter.

The trial court’s problem was of course to decide the motion to dismiss and to rule on the entire case. Hence, the recourse to discussion both of the presumption and the inference of fact. The presumption justified denial of the motion to dismiss even as of the time of its making. The inference of fact, regardless of the presumption, but supportive of it in a sense, justified the finding of guilt on the whole case. Thus, the trial court’s resort to alternative rationes decidendi.

Of course, as will be noted shortly, the inference of scienter from possession alone of contraband would have sufficed to deny the motion to dismiss at the close of the People’s case. Certainly, the trial court chose not to make the inference of scienter on the People’s case and that omission may not be supplied on appeal. With equal certainty however it made the inference of fact in evaluating the whole case.

Most, if not all, of the evidence relating to the defendants’ knowledge was introduced by them after the court reserved decision on their motions to dismiss at the close of the People’s case. However, it is settled that a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People’s case, proceeds with the risk that he will inadvertently supply a deficiency in the People’s case. (See People v. Farina, 290 N. Y. 272, 274; People v. Corbisiero, 290 N. Y. 191, 193; People v. Trotta, 30 A D 2d 562, 563; McGautha v. California, 402 U. S. 183, 215-216; United States v. Calderon, 348 U. S. 160, 164, n. 1; United States v. Maffei, 450 F. 2d 928, 930 [6th Cir.], cert. den. 406 U. S. 938; United States v. Rosengarten, 357 F. 2d 263, 266 [2d Cir.]; United States v. Haskell, 327 F. 2d 281, 282, n. 2 [2d Cir.]; United States v. Carabbia, 381 F. 2d 133, 138 [6th Cir.]; United States v. Greene, 442 F. 2d 1285, 1286-1287, n. 3 [10th Cir.]; but see United States v. Rizzo, 416 F. 2d 734, 736, n. 3 [7th Cir.]; Cephus v. United States, 324 F. 2d 893 [D. C. Cir.].)

Earlier, while ,still discussing the statutory presumption, and to establish that the presumption had not been rebutted, the trial court pointed out that with its conspicuous display the magazine stood out like a sore thumb ” from the other publications handled by the booksellers.

It is evident then that the trial court found scienter both by reason of the statutory presumption not having been rebutted and by its own inference of the fact of knowledge from the evidence. Since the attack on the validity of the presumption rests in part on the probabilities of knowledge by the booksellers of what kind of material they were selling, it necessarily follows that the probabilities supporting the validity of the presumption, the failure to rebut it successfully, and ¿he inference of knowledge overlap. The conviction should be affirmed on either view of the case.

Defendant Dar gis was the manager and sole employee making purchases for a bookshop in which the magazine was sold. In particular, he ordered and reordered the magazine, personally unpacking copies and positioning them on the shelves. He sold 20 to 25 copies himself, and admitted saying to customers that he was surprised to see that a comic book sold so well.” He also admitted he had glanced at the ending pages ” of Zap No. 4, and had looked at the garish cover with the legend “ Adults Only ”. Defendant Kirkpatrick was the comanager of his bookshop in which the magazine was also sold. He did the ordering and reordering of various issues of Zap, including the ordering of 150 copies of Zap No. 4. He admitted personally having sold 25 to 30 copies of Zap No. 4. The characteristic drawings of the magazine are largely of the same kind from the first page to the last, so that any sampling would have been illustrative of the bulk. It is undisputed that each of the bookshops was a purveyor of large quantities of legitimate publications, kept in stock in the many thousands, with a wide range of serious literature, fiction and periodicals. '

Because it is the simpler of the two issues, the first to be discussed is the permissible inference in a criminal case that one in possession of contraband knows the contraband nature of his possession.

The principle was most recently discussed by this court in People v. Reisman (29 N Y 2d 278). Treating of the possession of a large commercial quantity of marijuana picked up as a shipment at an air terminal by the defendant and consigned to his care, it was said: ‘ ‘ The crime of possessing dangerous drugs requires a physical or constructive possession with actual knowledge of the nature of the possessed substance (Penal Law, §§ 220.05-220.20). Knowledge, of course, may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred (see, e.g., People v. Groom, 60 Cal. 2d 694, 696; People v. Embry, 20 Ill. 2d 331, 332; 72 C. J. S., Poisons, § 7, subd. c., par. [2]). Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises (e.g., 2 Wigmore, Evidence [3d ed.], §§ 244-245, 260; cf. Kuchlik v. Feuer, 239 App. Div. 338, 339). This, of course, is an elemental inference based on common experience and all but universal probabilities. Thus it is an ancient rule of inference of rebuttable presumption of fact that the recent and exclusive possession of the fruits of any crime warrants the inference of guilt, including, when material, knowledgeable possession (Wigmore, op. cit., supra, vol. 1, § 152, vol. 9, § 2513; Richardson, Evidence [9th ed.], § 88 and cases cited). In the case of contraband its possession is a crime per se, and hence the inference of guilt, that is, knowledgeable possession, is as strong as is the case for instance, with stolen goods (e.g., People v. Roman, 12 N Y 2d 220, 222; People v. Berger, 260 App. Div. 687, 689-690, affd. 285 N. Y. 811; Wigmore, op. cit., supra, § 152; Richardson, loc. cit., supra).” (29 N Y 2d, at pp. 285-286.)

Needless to say, the inference of knowledge rests on the probabilities of human transactions. It is rare that one does not know what one possesses. Since the inference of knowledge is but that, the burden of going forward and negativing the inference is a slight one and, by the nature of things, rarely is there occasion to invoke it. It must be an extraordinary circumstance which prevents one from knowing what one possesses.

When one moves to the alternative ground for the trial court’s conviction and for this court’s affirmance, that of the statutory presumption, there are parallel analyses.

It has always been the law, and the only difference today is that the doctrine is more sharply circumscribed, that a statutory presumption in a criminal case, even if rebuttable, must have a supporting foundation in the probabilities. Otherwise, persons charged with crime could be required unfairly to prove their innocence and in some cases compelled as a practical matter to testify in their own behalf. On the other hand, statutory presumptions that do no more than codify accepted rules of inference (as in knowledge of the contraband nature of contraband possessed) have always been held valid (Penal Law, § 165.55; see, e.g., People v. Berger, 260 App. Div. 687, affd. 285 N. Y. 811; People v. Elfe, 37 A D 2d 208). So too, presumptions designed to prevent persons closely associated in time and space from avoiding responsibility by any one of them for the contraband (as in the case of guns found in a vehicle occupied by two or more persons) have been consistently sustained in this court and the United States Supreme Court (e.g., People v. Terra, 303 N. Y. 332, 335, app. dsmd. for want of a substantial Federal question 342 U. S. 938). The cases which have analyzed statutory presumptions and have justified them on the grounds of fair ”, natural ” and “ rational ” connections with elements of a crime or on the probabilities bearing on criminality have been discussed in People v. McCaleb (25 N Y 2d 394, 400-404; see, also, Ann., Lottery Device — Statutory Presumption, 17 ALR 3d 491, 494-495).

Most important for purposes of this case is to recognize, as was said in the McCaleb case, that the Supreme Court in Leary v. United States (395 U. S. 6) did not cast-all statutory presumptions in criminal cases in any doubt at all. The difficulty in that case was that a double inference was required to sustain the presumption there, namely, that the marijuana was imported and that defendant knew of such importation, and only the first part of the double inference was supported by the probabilities (People v. McCaleb, supra, at pp. 401-402).

This does not mean that a statutory presumption has no greater effect than a permissible inference based on probabilities. The truth is that a presumption will require less in the way of probabilities to support it. In short, unlike the inference, it need not establish the ultimate fact to which it is addressed beyond a reasonable doubt, often the case with the simpler inference (People v. Reisman, 29 N Y 2d 278, 286, supra; cf. McCormick, Evidence [1954], § 313; 22A C. J. S., Criminal Law, § 579, pp. 331-332; State v. Tutalo, 99 R. I. 14, 17-20).

On this view, it is hardly arguable that by a purely logical test the presumption of knowledge in an obscenity statute is amply supported by the probabilities. Even the largeness of the bookshop does not lessen the probabilities; if anything, with respect to egregiously packaged or conspicuously bizarre material it will stand out, as the trial court said, “ like a sore thumb ”, in a staid collection of books. Nor should the test be easier for the large bookseller as contrasted with the small one. Indeed, the small one may well be victimized by tie-in sales or lack of knowledge of his wares because his books and magazines are only a small part of his stock. In any event, no merchant, regardless of the size and scope of his inventory, can survive economically unless he knows his stock. This is a truism and an ancient one.

Although no courts have made the distinctions it would seem too that in sustaining legislatively enacted presumptions one must look to counterbalancing factors. It is one thing to have presumptions in crimes punishable by long imprisonment, or even capital punishment. It is another to utilize presumptions in minor crimes and offenses where the policing problem is aggravated and the escape of responsibility by studied ignorance or denial too easy. Moreover, one must look to the ease with which a presumption may be rebutted. If it is easy for the defendant to rebut, then the presumption is a tolerable burden (see People v. McCaleb, 25 N Y 2d 394, 401, supra; McCormick, op. cit., supra, § 313, pp. 662-663). Of course, the corollary principle, favoring the defendant, is that a plausible rebuttal may very well place the burden and going forward again on the prosecution if it is to sustain its over-all burden of persuasion which is to establish guilt beyond a reasonable doubt (id.).

The logic of proof aside, there is an added policy consideration in the use of a presumption in any case involving a limitation on speech or press. This policy consideration concerned the Supreme Court in Smith v. California (361 U. S. 147) and it is the concern of the dissenters in this court. That concern is also shared by the majority.

The fear is that any censorship of obscene materials will inhibit the bookseller from open dissemination of only possibly obscene material. That fear, however, is not to be confused with the holding of the Smith case which rejected out of hand a State statute which made the seller of obscene material guilty, regardless of his knowledge or ignorance of the contents. No such statute, of course, is involved here.

Mr. Justice Brennan wrote the majority opinion in the Smith case which made clear that the purpose of the holding was not to emasculate prosecution for obscenity. After express disavowal of such an effect the opinion went on to say: ‘ ‘ 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 ” (361 U. S., at p. 154).

The quoted comment embraces of course the alternative ground for sustaining the convictions in this case based on the inference of fact. But Mr. Justice Bbennan went on to envisage the possibility of a burden placed on a bookseller to go forward and explain his possession of the contraband—the presumption in short. He said: “ We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene, but we consider today only one which goes to the extent of eliminating all mental elements from the crime. ” (361 U. S., at pp. 154-155).

Notably, the opinion recognized that any obscenity statute applicable to a bookseller will induce some tendency to self-censorship, but also indicated that the decision did not require meeting the problem. The importance of the expressed restraint is of course that otherwise any effective control of obscenity would become impossible. The hardcore ” obscenity to which modern efforts are directed is largely of the kind where the authors and publishers are or would be largely anonymous or disguised. It is at some point of distribution that the offense may be uncovered and only sometimes worked backward to the makers of the contraband. In any event, so long as the Supreme Court has not viewed obscenity as beyond legislative control, it behooves the courts to sustain rational efforts at control and not, indirectly on attenuated constitutional speculations, to overthrow serially every restrained effort at control. So long as obscenity measures are restricted to the type of material now involved, the social redeeming value qualification retained, and only rebuttable presumptions based on rational connection or probabilities are utilized, the risk to constitutionally protected speech or press is invisible.

Accordingly, the order of the Appellate Term should be affirmed.

Chief Judge Fuld, (dissenting).

Subdivision 1 of section 235.10 of the Penal Law provides that a person who sells obscene material in the course of his business is presumed to do so with knowledge of its content and character. Since I believe that that presumption is unconstitutional and that the trial court, in adjudging the defendants guilty, relied on it, I would reverse the convictions and dismiss the informations.

Before turning to the question of constitutionality, it is first necessary to demonstrate that the trial court relied upon the presumption in finding scienter and did not, contrary to the majority’s hypothesis, find as a fact, separate and apart from the presumption, that the defendants had actual knowledge ” of the offending magazine’s content and character.

The defendants were the managers of two neighborhood bookstores located in Manhattan, the New Yorker Bookstore on the upper west side and the East Side Bookstore on the lower east side. The New Yorker Bookstore, where Kirkpatrick was employed, carried more than 10,000 different titles and 25,000 volumes of hard-cover and paperback books on all manner of subjects, While the East Side shop carried about 16,000 titles and from 50,000 to 60,000 volumes. The only evidence introduced at the trial on the People’s case was that given by each of the arresting police officers that he had purchased the magazine (Zap Cornice No. 4) —which contained the legend on its cover, “ Adults Only ”—for 50 cents.

Despite the indisputable fact that there was not a word- of testimony or evidence presented during the People’s case that either defendant knew the content or nature of Zap No. 4, the trial judge, after the prosecution rested, reserved decision on the defense motion to dismiss on the ground that evidence of scienter was lacking. This ruling demonstrates that the judge necessarily relied on the statutory presumption of knowledge; had he not done so, he would, of course, have granted the motion. In any event, after decision on their motion had been reserved, the deféndants took the stand quite obviously to attempt to rebut that presumption.

Each defendant denied having any familiarity with the contents of the magazine. More specifically, Kirkpatrick testified that, although he had sold some 25 copies, he had never read, indeed, had not even “ looked inside ” of the magazine. And, contrary to the intimation in the court’s opinion (p. 21), Kirkpatrick had never “ reordered” Zap No. 4. The other defendant, Dargis, stated that he had ordered that magazine, as he put it, “ blind,” from an order form furnished by the supplier which merely listed, without description, the titles of the “comics” available. Although Dargis acknowledged that he had “ glanced ” at its “ ending pages ” and had reordered the magazine after the original supply (of 100) had been exhausted, he denied that he had ever read it or had ever discussed its contents with anyone. I would but add that it does not have an obscene cover and that no claim is made that either store dealt in sex-oriented books or in material such as is currently being purveyed in the Times Square area of New York City. As indicated, the trial court found both defendants guilty of selling obscene material, knowing its content and character, in violation of section 235.05 of the Penal Law (64 Misc 2d 1055).

I deem it unnecessary to consider whether the evidence in the record would have supported or justified an affirmative finding of scienter since, in my view, the trial judge’s treatment of the case, as reflected in his opinion, demonstrates that, in deciding that the defendants were guilty, he placed his reliance upon the statutory presumption of knowledge. In the first place, under the caption, “ the issues ”, he declared that he had to pass on two questions with respect to the subject of scienter, namely, “ (a) * * * Is that presumption unconstitutional, as defendants claim? # * * [and] (b) Assuming its constitutionality, have the defendants satisfactorily rebutted the presumption? ” (64 Mise 2d, at p. 1058). In the second place, after deciding that it was valid (pp. 1063-1068), the judge categorically stated that “ The circumstances here clearly indicate that the defendants have not satisfactorily rebutted the presumption ” (p. 1070).

This certainly is not the language a court would use if it had found as an affirmative fact that each of the defendants, independent of the presumption, actually knew the sort of publication he was selling. In point of fact, had the judge believed that the evidence adduced established, beyond a reasonable doubt, that the defendants had actual knowledge of the assertedly obscene nature of the magazine, he would not have found it necessary to treat in depth the constitutionality of the presumption and explicitly announce, as he did, that the defendants had not “satisfactorily rebutted ” that presumption. In light of all this, the single sentence in the course of the trial court’s 30-page opinion — to which the majority points to support its conclusion that the trial judge “ found actual knowledge ” (opn., p. 20) — can only mean that, taking into account all the circumstances of the case, the presumption had not been rebutted.

In short, implicit both in the court’s conduct of the trial and in its treatment of the case is a determination that, absent reliance upon the presumption, the proof offered did not establish that the defendants knew the allegedly obscene nature of the material. This being so, our court may not make a new finding of fact even though we were to assume that the trial judge could have made such a finding. (See People v. Roper, 259 N. Y. 170, 175-177; Murray Co. v. Lidgerwood Mfg. Co., 241 N. Y. 455, 458; Armstrong v. DuBois, 90 N. Y. 95, 99; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp. 496-497, 751.)

I turn, then, to the question of the constitutionality of the presumption created by section 235.10 of the Penal Law. That statute—providing as it does that one who sells obscene material in the course of his business ‘ ‘ is presumed to do so with knowledge of its content and character — enables the prosecution to convict the bookseller of selling obscene material, no matter how large his establishment, or how numerous and varied the publications on his shelf, without any proof whatsoever that he knew the content or character of such material, solely as a result of the presumption of knowledge created by the statute. In my judgment, such a presumption, on its face and certainly as applied to the facts of this case, not only offends against the due process requirements of the Federal Constitution (14th Arndt.) and the State Constitution (art. I, § 6) but also contravenes the guarantee of freedom of expression (U. S. Const., 1st Amdt.; N. Y. Const., art. I, § 8).

A statutory presumption violates due process, the Supreme Court has held, if there is no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. * * * [W]here the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it”. (Tot v. United States, 319 U. S. 463, 467-468; see, also, Turner v. United States, 396 U. S. 398, 416; Leary v. United States, 395 U. S. 6, 36; People v. McCaleb, 25 N Y 2d 394, 403; People v. Terra, 303 N. Y. 332, 335.) In other words, the upshot ” of the decided cases, the Supreme Court wrote in Leary v. United States (395 U. S. 6, 36, supra), is that a criminal statutory presumption must be regarded as 1 irrational ’ or ‘ arbitrary, ’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. ”

It is most unlikely that a bookseller — especially in a store such as those in which the defendants were employed—would have knowledge of the content of the publications being offered for sale. To say that booksellers in the circumstances of this case are more likely than not ” to know the character and content of all the material they sell is to ignore not only the record evidence regarding the manner in which books and magazines are ordered but the very circumstances of life ” itself. The New Yorker Bookstore — in which Kirkpatrick was employed — carried over 10,000 titles, while the East Side shop—where Dargis worked—carried about 16,000 titles. Reason and experience tell us that it would be impossible for a bookseller in either store to acquaint himself with the content and character of so large a number of titles. In any event, it may not be said with substantial assurance ” — as required by the cases—that such booksellers may be ‘ presumed ’ ’ to know the content and character of a publication merely upon proof that they sold it.

However, even if the statutory presumption were able to withstand an attack based on due process grounds, I would be impelled to stamp it unconstitutional as an infringement on the freedom of expression guaranteed by the First Amendment. (See Smith v. California, 361 U. S. 147; Speiser v. Randall, 357 U. S. 513.) The presumption violates that amendment because it creates and occasions a system of “ self-censorship ” on the part of booksellers which affects the sale and distribution of all books —those that are constitutionally protected as well as those that are obscene. It is hardly necessary to state that no comparable injury to the fundamental guarantee of free expression is involved where the presumption permits an inference of knowledge from presence in a stolen car (People v. McCaleb, 25 N Y 2d 394, supra), possession of marijuana (Leary v. United States, 395 U. S. 6, supra) or of machine guns (People v. Terra, 303 N. Y. 332, supra) or even food or the merchandise of ordinary trade. As the Supreme Court observed in Smith v. California (361 U. S. 147,152-153, supra), “ There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller.”

Indeed, it was the danger of self-censorship in the sale of books that prompted the court in Smith (361 U. S. 147, supra) to make clear its insistence on the requirement of knowledge by the bookseller. The court there invalidated a California statute which made it unlawful for a bookseller to have obscene material in his store, even though he had no knowledge of its content or character. In holding that the elimination of the requirement of scienter would inhibit and stifle free expression, the Supreme Court declared (361 U. S., at pp. 153-154):

By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public’s access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. * * * And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller’s limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State conld not constitutionally suppress directly. The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.”

The Penal Law provision here challenged attempted to avoid the Smith problem by creating a rebuttable presumption of knowledge instead of absolute liability. The trouble with this procedural tactic is that it does not come to grips with the problem of self-censorship raised in the Smith case, namely, that the bookseller will tend to limit his stock to books which he has read and can guarantee.

It is, of course, not necessary that there be eyewitness testimony that the bookseller had read a book in order to prove his knowledge of its contents but it seems clear that legislation, such as section 235.10, which sanctions conviction of the bookseller for selling obscene material without any proof whatsoever that he knew or was familiar with its nature, is afflicted with precisely the same vice and produces the same objectionable result as the statute struck down in Smith v. California (361 U. S. 147, supra). In other words, such legislation requires the bookseller to go forward with affirmative proof that he had no knowledge of the content of the publication in order to prevent a finding of guilt.

I would emphasize that making the presumption rebuttable does not make it less effective as a restraint. In either case, a bookseller would be compelled to become a censor and, under compulsion of the statute, would tend to restrict the books to those he read or investigated. In consequence, the State is permitted to indirectly suppress what it could not suppress directly. Thus, the rationale underlying the decision in Smith— the very real danger of self-imposed restriction of freedom of expression—also renders the presumption in this case impermissible and unconstitutional.

Although the State may generally regulate the allocation of the burden of proof through legislation, it is clear that a statute may not, where the First Amendment is involved, declare a person presumptively guilty of a crime or presume that he has committed one of its material elements. (See Speiser v. Randall, 357 U. S. 513, 523-524, supra; Smith v. California, 361 U. S. 147, 150-151, supra; Grove Press v. Evans, 306 F. Supp. 1084,1087-1088; see, also, Note, Obscenity Prosecutions, 41 N. Y. U. L. Rev. 791, 797.) Freedom of speech is toó important a right to allow it to be seriously impeded or impaired by a presumption.

The convictions should be reversed and the informations dismissed.

Judges Burke, Jasen and G-abrielli concur with Judge Breitel ; Chief Judge Fuld dissents and votes to reverse in a separate opinion in which Judges Jones and Wachtler concur.

Order affirmed. 
      
      . Indeed, the Assistant District Attorney who argued the appeal in our court frankly acknowledged, in response to a query from the bench, that the presumption was “ needed ” to establish the guilt of the defendant Kirkpatrick.
     
      
      . The applicable rule is well stated in the Murray case (241 N. Y. 455, 458, supra): “ no finding based upon merely permissible inference of fact may be supplied by [our] court where the court which might have drawn such inference chose not to do so.”
     
      
      . Subdivision 1 of section 235.10 recites that “A person who promotes * * * obscene material, or possesses the same with intent to promote * * * it, in the course of his business is presumed to do so with knowledge of its content and character.” Subdivision 2 provides that one “who possesses six or more identical or similar obscene articles is presumed to possess them with intent to promote the same”, and section 235.00 (subd. 4) declares that “Promote” means “to manufacture, issue, sell, give” etc.
     
      
      . As previously noted (supra, p. 28), the People actually rested their case without introducing any evidence of such knowledge on the part of the defendants.
     