43 A.D.2d 27 | N.Y. App. Div. | 1973
On July 19 and 20, 1973, Judges of the Criminal Court of the City of New York viewed certain films: “ Behind the Green Door ”, “ High Rise ”, “ The Newcomers ” and “ The Innocent Abroad ”. The Judges determined that these films were obscene, search warrants were issued and they were seized.
On July 24, 1973, the District Attorney of New York County and the Corporation Counsel of the City of New York jointly commenced actions against the theatre owners and distributors, pursuant to CPLR 6330. This section confers upon the Supreme Court jurisdiction to enjoin the distribution of a motion picture “of an indecent character, which is obscene, lewd, lascivious, filthy, indecent or disgusting * * * or in any other respect defined in section 235.00 of the penal law ”. The plaintiffs sought an injunction pendente lite.
On August 14, 1973, Mr. Justice Gellinoff, at Special Term, dismissed the complaints, denied the applications for a preliminary injunction, holding that CPLR 6330 was overbroad, therefore unconstitutional, and that the court had no evidence to gouge the contemporary standards of the community. We do not agree.
Although the defendants refused to present expert testimony, Mr. Justice Gellinoff himself found the films “ obscene ” and in the court’s personal opinion “patently offensive”. We concur. In the case of “ The Green Door ” movie, the advertisements vaunted it as “ hard-core ”, and a movie critic noted that it depicted acts of sexual perversion. In so advertising, the defendants were exploiting pornography for its own sake and were blatantly pandering to prurient interests for commercial gain alone. Actually, it is beyond question, all four films graphically depicted various acts of sexual misconduct, including performances of sodomy and sadism, sometimes involving several participants in grossly perverted acts. These multiple and variegated ultimate acts of sexual perversion would have been regarded as “obscene” by the community standards of Sodom and Gomorrah.
Turning now to the statute, we feel CPLR 6330 is well within the three basic guidelines set forth by Miller v. California (413 U. S. 15). That case held that State statutes, designed to regulate obscene materials, do not violate the First Amendment, but they must be limited to sexual conduct1‘ specifically defined by the applicable state law, as written or authoritatively construed”. (p. 24; emphasis added.) And the court enunciated a three-part test of a constitutional limitation: (a) whether the average person, applying community standards, would find the work appeals to prurient interest; (b) whether the work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable State law; and (c) whether the work lacks serious literary, artistic, political or scientific value. The court then went on to give ‘1 examples ’ ’ of the types of obscenity a State ‘ ‘ could define for regulation ’ ’, such as patently offensive representations or depictions of ultimate sexual acts, normal or perverted, actual or ¡simulated, and representations of masturbation, excretory functions, and lewd exhibition of the genitals. And it is noteworthy that the court, in Miller, in describing the material it was considering, referred to it as “ pornography ”, i.e., obscene material dealing with sex, which is what the pictures before us indisputably are.
In holding, as we do, that the New York courts should synthesize by judicial construction the requirements of the Miller standards into CPLR 6330, we note also that in section 235.00 of the Penal Law [which is referred to in CPLR 6330 for an alternative description of obscene sexual conduct], most of the language is the same as in the California statute considered in Miller and also in the Georgia statute involved in Paris Adult Theatre I v. Slaton (supra). We note also that in considering the New York statute in People v. Heller (supra) the Supreme Court had an opportunity to declare it unconstitutional. But it did not do so.
Finally, we note that the constitutionality of the injunctive relief set forth in section 22-a of the Code of Criminal Procedure, the predecessor to CPLR 6630, was upheld in Broivn v. Kingsley Books (1 N Y 2d 177), which the Supreme Court subsequently affirmed sub nom. Kingsley Books v. Brown (354 IT. S. 436).
And by stepping into the breach and saving the statute by incorporating into it the Miller postulates, we do so in the light of settled law that (a) the courts may interpret statutory
We further find on the basis of history, common sense and the legislative policy which lead to the enactment of our obscenity laws, that the failure to grant a preliminary injunction would cause grave public harm and constitute an unwarranted rejection of legislative intent. (Tenney v. Liberty News Distrs. Co., 13 A D 2d 770; Lazarus v. Yorkview Theater Corp., 74 Misc 2d 729, supra; Walter v. Slaton, 227 Ga. 676, cert. den. 404 U. S. 1003.)
Hence, the orders appealed from should be reversed, on the law and on the facts, the complaints reinstated, and the preliminary injunctions requested granted, with costs.
Nunez, Kupferman, Lane and Capozzoli, JJ., concur.
Four orders, Supreme Court, New York County, each entered on or about August 14, 1973, unanimously reversed, on the law and on the facts, the cross motions denied, the complaints reinstated, and the motions for preliminary injunctions granted, and, in each action, appellants shall recover of respondents $60 costs and disbursements of the appeal.