Judgment rendered April 17, 1962, convicting defendant of violating section 1141 of the Penal Law (obscene prints and articles), unanimously modified, on the law and on ¡ -the facts, to the extent of dismissing the third count of the information, and, as so modified, affirmed. The evidence of scienter on the third count is insufficient. The proof establishes beyond a reasonable doubt the defendant’s guilt on the remaining three counts charging that he held out for sale and sold the described photographs and book, which are obscene within the meaning of section 1141. (People v. Finkelstein, 11 N Y 2d 300.) No objection was made to the receipt of the photographs purchased on January 11 and 13, 1961 on the grojund that the information referred only to photographs purchased on January 18, 1961. Having failed to object to the variance, the question may not be raised for the first time on appeal. (People v. McCarthy, 250 N. Y. 358, 363; People v. Formosa, 131 N. Y. 478.) We do not find the sentence to be excessive. Concur — Botein, P. J., Yalente, McNally, Stevens and Steuer, JJ.
People v. Fried
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