22 A.D.2d 932 | N.Y. App. Div. | 1964
Appeal by defendant from a judgment of the former County Court, Queens- County, rendered November 7, 1960 after a jury trial, convicting him of possession with intent to sell and distribute an obscene magazine (Penal Law; J 1141), and imposing sentence. '• Judgment reversed on the law; indictment dismissed; line directed to be remitted; and bail directed to be exonerated. The findings 'of fact implicit in the verdict are affirmed. We are- constrained by the determinations in Sunshine Book Co. v. Summerfield (355 U. S. 372) and Matter of Excelsior Pictures Corp. v. Regents (3 N Y 2d 237, mot. for rearg. den., 3 N Y 2d 942) to hold that the 1958 Annual Edition of the magazine “ Sunshine and Health ” is not obscene. 1-f we were not required as matter of law to reach such conclusion, we would have affirmed the judgment. , (For, decision on motion to dismiss indictment, see 22 Misc 2d 722; and for decision on motion for certificate of reasonable doubt, see 208 N. Y. S. 2d 49.) Beldock, P. J., Ughetta, Christ, Hill and Rabin, JJ., concur.
