
    The People of the State of New York, Appellant, v Calbud, Inc., Doing Business as Mayfair Theatre, Marvin Muchnick, Also Known as Buddy March and Calvin Young, et al., Respondents.
    Argued January 8, 1980;
    decided February 14, 1980
    
      POINTS OF COUNSEL
    
      John J. Santucci, District Attorney (James Clark Quinn of counsel), for appellant.
    I. The application of a "statewide” standard in evaluating obscenity under section 235.00 of the Penal Law is neither constitutionally nor statutorily required. (Miller v California, 413 US 15; People v Heller, 33 NY2d 314; Jenkins v Georgia, 418 US 153; Hamling v United States, 418 US 87; United States v Cangiano, 491 F2d 906, 419 US 904; United States v Various Arts. of Obscene Mdse., Schedule No. 1303, 433 F Supp 1132; United States v Cutting, 538 F2d 835; Pinkus v United States, 436 US 293; Smith v United States, 431 US 291.) II. The instructions to the Grand Jury did not so impair the integrity of the proceeding as to require dismissal of the indictments. (People v Di Falco, 44 NY2d 482; People v Brown, 193 App Div 203; People v Harris, 182 Misc 787, 268 App Div 731, 294 NY 424; People v Iannone, 45 NY2d 589; People v Doe, 47 Misc 2d 975, 24 AD2d 843; People v Van Dusen, 56 Misc 2d 107; People v Vosburg, 21 Misc 2d 372; People v Percy, 45 AD2d 284, 38 NY2d 806; People v. Meachem, 50 AD2d 953; People v Rallo, 46 AD2d 518, 39 NY2d 217.)
    
      Seymour S. Detsky and Herbert S. Kassner for T.Q. Theatre Corp. and others, respondents.
    I. The Court of Appeals has held that in determining community standards, a State-wide standard is to be applicable under section 235.00 of the Penal Law, and this determination has been affirmed and reaffirmed by our State courts and is part of our constitutional fabric in determining the manner in which the law relating to obscenity may be applied. (Miller v California, 413 US 15; People v Heller, 33 NY2d 314; People v Nitke, 45 AD2d 543; People v Ciampa, 57 AD2d 932; Jenkins v Georgia, 418 US 153.) II. The Grand Jury should have received instructions and guidance with respect to the tripartite test of obscenity, the manner in which it has been interpreted by the courts, and the fact that State-wide community standards were to be applied by the Grand Jury. (N. A. A. C. P. v Button, 371 US 415; Interstate Circuit v Dallas, 390 US 676; Baggett v Bullitt, 377 US 360; Dombrowski v Pfister, 380 US 479; Elrod v Burns, 427 US 347; Bates v Little Rock, 361 US 516; Thomas v Collins, 323 US 516; Shelton v Tucker, 364 US 479; Wooley v Maynard, 430 US 705.)
    
      Harry H. Burstein and Stanley H. Fischer for Meridian Time Corp. and another, respondents.
    A "statewide” community standard is required in the charge to the Grand Jury. (People v Heller, 33 NY2d 314; Miller v California, 413 US 15; People v Ciampa, 57 AD2d 932; People v Andrek, 50 AD2d 637; People v Nitke, 45 AD2d 543; People v Hausman, 82 Misc 2d 1032; People v Dingle, 70 Misc 2d 840; People v Martin, 78 Misc 2d 1087; People v Mackey, 82 Misc 2d 766; People v Rallo, 46 AD2d 518.)
    
      Edward Gasthalter for Evsten Theatres, Inc., and others, respondents.
    Once having elected to proceed against respondents by way of indictment, appellant was required to charge the Grand Jury that a "statewide standard” applies. (People v Heller, 33 NY2d 314; Miller v California, 413 US 15; Matter of Schinasi, 277 NY 252.)
   OPINION OF THE COURT

Gabrielli, J.

The People appeal from an order of the Appellate Division, which affirmed a decision of Supreme Court dismissing the indictments against defendants. The sole question presented by the People’s appeal is whether the District Attorney’s legal instruction to the Grand Jury impaired the integrity of that body’s deliberations and thereby rendered the indictments "defective” within the meaning of CPL 210.20 (subd 1, par [c]; see CPL 210.35, subd 5).

The indictments charged defendants with having individually committed the crime of obscenity in the second degree (Penal Law, § 235.05). Under subdivision 1 of section 235.00 of the Penal Law, any material or performance may be found to be obscene if "the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex”. Attempting to fulfill his obligation to provide legal guidance to the Grand Jury (CPL 190.25, subd 6), the District Attorney instructed that body on the law of obscenity by reciting this statutory definition virtually verbatim. He neglected to advise the Grand Jury, however, that the material before it would have to be judged "obscene” from the viewpoint of the average person applying State-wide "contemporary community standards” (People v Heller, 33 NY2d 314, 322-323). When this omission became apparent as a result of defendants’ motion to inspect the Grand Jury minutes (see CPL 210.30), the trial court promptly dismissed the indictments as defective on the ground that the erroneous legal instruction had impaired the integrity of the Grand Jury (CPL 210.20, subd 1, par [c]; 210.35, subd 5). This determination was affirmed by the Appellate Division. We conclude, however, that the decisions below must be reversed.

We note at the outset that we are not persuaded by the People’s contention that the State-wide standard for obscenity articulated in People v Heller (33 NY2d 314, supra) should be modified. Although the United States Supreme Court has indicated that the issue of what constitutes obscenity may be determined with reference to local community standards (Jenkins v Georgia, 418 US 153, 157), we remain convinced that the rule established in Heller is the most effective approach to closing the door on censorship "by local authorities * * * who would [otherwise] be free to form their own notions as to what constitute^] patently offensive material” (People v Heller, supra, at p 322). For this reason, we decline the People’s invitation to reconsider Heller, and we reaffirm our view that the contemporary standards of communities throughout the State are the proper measure of what is "obscene” within the meaning of our Penal Law.

This conclusion, however, does not end the inquiry in the present case. While it is true that the legal instructions given to the Grand Jury were incomplete in light of Heller, it does not necessarily follow that the resulting indictments should have been dismissed as defective. The primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution (see, e.g., People v Van Dusen, 56 Misc 2d 107; People v McAdoo, 45 Misc 2d 664, affd 51 Misc 2d 263, cert den 386 US 1031; People v Vosburg, 21 Misc 2d 372; see CPL 190.05, 190.65, subd 1). In the ordinary case, it may be said that the Grand Jury has properly carried out this function when it has issued an indictment upon evidence that is legally sufficient to establish that the accused committed a crime (CPL 190.65, subd 1). The Grand Jury is not, of course, charged • with the ultimate responsibility of determining the guilt or innocence of the accused (see, e.g., People v Van Dusen, supra; People v Vosburg, supra). That duty, in our system, resides with the petit jury, which has the obligation of assessing the evidence in light of the applicable legal rules and determining whether the People have proven the guilt of the accused beyond a reasonable doubt.

Given this functional difference between the two bodies, it would be unsound to measure the adequacy of the legal instructions given to the Grand Jury by the same standards that are utilized in assessing a trial court’s instructions to a petit jury. Indeed, the difference in the extent and quality of the legal instructions that must be given to the two bodies is reflected in the Criminal Procedure Law, which, on the one hand, directs the court or District Attorney to give legal instruction to the Grand Jury only "[wjhere necessary or appropriate” (CPL 190.25, subd 6), but, on the other hand, requires a Judge presiding over a trial before a petit jury to state in detail "the fundamental legal principles applicable to criminal cases in general” as well as "the material legal principles applicable to the particular case” and "the application of the law to the facts” (CPL 300.10, subd 2). In view of the divergent functions of the two bodies, we hold that a Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law. We deem it sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime.

This lesser standard was clearly met in the present case. The District Attorney adequately informed the Grand Jurors of the essential elements of the crimes they were being asked to consider by reading the applicable provisions of the Penal Law, including the statutory definition of obscenity. While his failure to furnish complete instructions regarding the proper legal standard for assessing obscenity would have been fatal if a determination of guilt hinged upon the instruction, it cannot be said that the omission was so significant in the context of the Grand Jury’s deliberations as to prejudice the interests of the defendants and render the indictments legally defective. Hence, it was error for the trial court to dismiss the indictments on this ground alone.

We note that we do not intend to suggest by our holding in this case that inadequate or incorrect legal instructions to the Grand Jury would never constitute grounds for dismissing an indictment as defective under CPL 210.35 (subd 5). To the contrary, we recognize that there may be situations in which the instructions to the Grand Jury are so misleading that the indictment could not be permitted to stand even though it is supported by legally sufficient evidence (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.35, pp 384-3S5). It is well established that a citizen cannot be haled into court and tried for an infamous crime unless he has first been indicted by a Grand Jury which has had the opportunity to consider the evidence against him (NY Const, art I, § 6; see People v Iannone, 45 NY2d 589, 593; Matter of Simonson v Cahn, 27 NY2d 1, 4-5). Indeed, the Grand Jury historically has acted as a buffer between the State and its citizens, protecting the latter from unfounded and arbitrary accusations (see, e.g., Gerstein v Pugh, 420 US 103, 117, n 19; United States v Calandra, 414 US 338, 342-343; Matter of Keenan v Gigante, 47 NY2d 160, 167-168; People v Iannone, supra, at p 594). When the District Attorney’s instructions to the Grand Jury are so incomplete or misleading as to substantially undermine this essential function, it may fairly be said that the integrity of that body has been impaired. Under such circumstances, CPL 210.35 (subd 5) as well as our State constitutional guarantees might well require dismissal of the Grand Jury’s indictments. In contrast, where, as here, the District Attorney omits information which would be essential for the petit jury’s determination of guilt but which is not essential to the Grand Jury’s less exacting responsibility of determining whether a prima facie case exists, it is inappropriate to dismiss the indictments on the ground specified in CPL 210.35 (subd 5).

Accordingly, the order of the Appellate Division should be reversed, the indictments reinstated and the case remitted for further proceedings on the indictments.

Meyer, J.

(concurring). While I concur in the result I cannot accept the dictum in the majority’s analysis. Whether the standard to be applied is State-wide is not an issue necessary to be determined in this case, if at all, and for me it is reason enough to avoid doing so that though the statutory definition of "obscene” set forth in subdivision 1 of section 235.00 of the Penal Law was adopted after People v Heller (33 NY2d 314, cert den 418 US 944) was decided the Legislature did not include the word "statewide” in that definition. While that does not necessarily mean that "community” as used in the definition does not mean "state” or that the Legislature did not use "community” in order to leave exact definition to the courts, there is at least some suggestion of other possibilities in the omission when it is recalled that the 1974 revision was adopted by the Legislature in response to our statement in Heller (33 NY2d, at p 331) that "it is within the province of the Legislature to determine whether the less stringent test of obscenity laid down in that case [Miller v California, 413 US 15] should now become the ultimate formula to be applied in New York”, and that in approving the act which became chapter 989 of the Laws of 1974 Governor Wilson stated that it brought the obscenity provisions of the Penal Law "into conformity with the recent Supreme Court decision in the case of Miller v. California.” (NY Legis Ann, 1974, p 416.)

It is enough for decision of the present appeal to note that reading of the statutory definition to the Grand Jury will normally be sufficient unless it can be said that because of the complexity of the matter the failure to do more impaired the integrity of the indictment and created a possibility of prejudice to defendant (People v Rallo, 39 NY2d 217, affg 46 AD2d 518; People v Percy, 38 NY2d 806, affg 45 AD2d 284; People v Banner, 59 AD2d 621). Since, as the majority notes the function of the Grand Jury is to decide only whether a prima facie case has been made out, not guilt or innocence, and the standard is simply a means of testing the appeal of the material involved to prurient interest in sex, its indictment of defendant using a community standard cannot be said to prejudice him even if the ultimate determination is that for conviction the jury must be instructed to apply a State-wide standard. The more so is that true when one recalls that juries regularly apply the standard of the reasonable man without being told the limits of the community which that fictional person inhabits, and that what is here to be applied is the standard of the "average person, applying contemporary community standards”.

Chief Judge Cooke and Judges Jones and Fuchsberg concur with Judge Gabrielli; Judge Meyer concurs in a separate opinion in which Judges Jasen and Wachtler concur.

Order reversed, etc. 
      
      . In the ordinary case, this standard may be met by reading to the Grand Jury from the appropriate sections of the Penal Law (see People v Lawson, 84 Misc 2d 24, 28; People v Dingle, 70 Misc 2d 840, 844).
     
      
      . The result might have been different here, for example, had the District Attorney provided the Grand Jury with erroneous and misleading instructions in response to a request from that body for clarification or amplification of the meaning of the phrase "contemporary community standards”.
     
      
      .  We note that, although the right to an indictment ordinarily cannot be waived (see Matter of Simonson v Cahn, 27 NY2d 1, 4), our State Constitution now provides for a limited exception to this rule. Under this constitutional provision, “a person held for the action of a grand jury upon a charge for [an infamous] offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6; see People v Iannone, 45 NY2d 589, 593, n 4).
     
      
       See, also, footnote 4 to Judge Wachtler’s dissent in People v Heller (33 NY2d 314, 341), reading: "Another reason why I think we should leave the rewriting of an obscenity statute to the Legislature is to allow it to define what community is encompassed by the term 'community standards’ in part (b) of the Miller formulation (413 U. S., at p. 25). The majority of our court today has defined community in terms of the entire State. I think that question should be decided by the Legislature after hearings have been held on the matter.”
     