Petition — Brown v. Tanenbaum

Supreme Co irt, U.S,

F I

LED

IN THE

Supreme Court of the United States

October Term 1977

afin

"

i et

Y Wy

c ’ r

No. %%1135

ROBERT BROWN,

—against—

JAK, JR., CLERK

Petitioner,

MELVYN TANENBAUM, a Judge of the County Court

of the State of New York, Suffolk County, HENRY

O’BRIEN, District Attorney of Suffolk County,

BENJAMIN WARD, Commissioner of Corrections

of the State of New York, and the SHERIFF OF

THE COUNTY OF SUFFOLK,

Respondents.

PETITION FOR WRIT OF CERTIORARI

RHODES & FISHER

Counsel to the Petitioner

16 Court Street

Suite 1210

Brooklyn, New York 11241

212/624 - 3784

STEVEN W. FISHER

BARRY GENE RHODES

Of Counsel

TABLE OF CONTENTS

PAGE

YT cod nda eie cua deanwen en's 1

ee ein ctu ee nehee heres éuesks 2

Dc Vtg see tous Pa Sescaees 2

Nee ee ee ale 2

Constitutional and Statutory Provisions at Issue .... 3

a EP eee eer eerres 5

EE 6s ns Sanne ci ad wh ARN ss RAS SE See 9

SE “occ cue ahecvne su hauhe ay eae cadneeeaees 13

Appendix A—Memorandum and Order ........... la

Appendix B—Order Dated January 16, 1978 ...... 10a

TABLE OF CASES

Giordenello v. United States, 357 U.S. 480 n.2 (1957) 12

Hamling v. United States, 418 U.S. 87 (1974) .... 12

Heller v. New York, 413 U.S. 483 (1973) ........ 7

Jenkins V. Georgia, 418 U.S. 153 (1974) .......... 13

Lefkowitz v. Newsome, 420 U.S. 283 (1975) .... 1,9,18

Matter of Miranda v. Issexs, 41 App. Div. 2d 176,

341 N.Y.S. 2d 541 (2nd Dept. 1973) ........ 6

Memoirs V. Massachusetts, 383 U.S. 413 [1966] .... 6

Menna v. New York, 423 U.S. 61 n.2 (1975) ...... 12

ii

Miller v. California, 418 U.S. 15 (1978) .......... ~

Roth v. United States, 354 U.S. 476 [1957] ...... 6

Sabbath v. United States, 391 U.S. 585 n.1 (1968) 12

Stone v. Powell, 428 U.S. 465 (1965) ............ 10

Stone v. Powell, 428 U.S. 465 (1976) ........... 1,13

United States v. Consiglio, 391 F. Supp. 564 (D.

RE I Yo en ar a Die ee 11

United States v. Doyle, 348 F.2d 715 (2nd Cir. 1965) 11

United States v. A Motion Picture Film Entitled “I

Am Curious—Yellow,” 404 F.2d 196 (2nd Cir.

RIE DUA AL SP pacts pea petnnange 12-13

United States v. Mann, 451 F.2d 346 (2nd Cir. 1971) 11

United States v. Zudick, 523 F.2d 848 (8rd Cir.

I aT ed a a a te ak 11

STATUTES

a i ewe ees 3

BE TR CT ian aera ge a 2

OTHER AUTHORITIES

Criminal Procedure Law § 690.10 .............. 3, 10

Criminal Procedure Law, § 710.70[1] ........... 4,10

Criminal Procedure Law, § 710.70[2] ........... 4,10

Consolidated Laws of New York, Book 39, McKin-

3 a er rr ey re 5, 6

Consolidated Laws of New York, Book 11A, McKin-

BE Sack ua ticcdse sens teeseseebisaces 4

IN THE

Supreme Court of the United States

October Term 1977

ROBERT BROWN,

Petitioner,

—against—

MELVYN TANENBAUM, a Judge of the County Court of

the State of New York, Suffolk County, HENRY

O’BRIEN, District Attorney of Suffolk County,

BENJAMIN WARD, Commissioner of Corrections of

the State of New York, and the SHERIFF OF THE

COUNTY OF SUFFOLK,

Respondents.

PETITION FOR WRIT OF CERTIORARI

Preliminary Statement

The petitioner seeks a writ of certiorari to the United

States Court of Appeals for the Second Circuit to review

the affirmance of the denial of his application for a writ

of habeas corpus. If accepted by this Court, this case

would present the question of whether the holding of

Lefkowitz v. Newsome * has been effectively overruled by

Stone v. Powell ** in the context of an obscenity case in

* 420 U.S. 283 (1975)

** 428 U.S. 465 (1976)

2

which all Fourth Amendment considerations are inex-

tricably linked to rights secured by the First Amend-

ment. The courts below denied to the petitioner federal

collateral review of the obscenity vel non of the materials

upon which his conviction was based, and in doing so

decided, incorrectly we think, an important question of

federal law which has not been, but should be, settled by

this Court.

Opinions Below

The opinion of the United States District Court for

the Eastern District of New York (George C. Pratt, J.)

has not yet been reported. (See, Appendix A, infra.)

The United States Court of Appeals for the Second

Circuit affirmed upon the opinion of the District Court.

(See, Appendix B, infra.)

Jurisdictional Statement

The decree of the Court of Appeals was dated and

filed January 16, 1978. Jurisdiction to review it is

conferred upon this Court by 28 U.S.C. § 1254(1).

Question Presented

Whether a state defendant, convicted upon his plea

of guilty in a obscenity case, is entitled to federal col-

lateral review on the issue of obscenity vel non when, as

acknowledged by the court of conviction, state law pre-

serves the issue for direct appeal.

3

Constitutional and Statutory Provisions at Issue

The First Amendment to the Constitution of the

United States provides in pertinent part:

Congress shall make no law . . . abridging the free-

dom of speech, or of the press...

The Fourth Amendment to the Constitution of the

United States provides in part:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

cause...

The Fourteenth Amendment to the Constitution of

the United States provides in part:

. .» No State shall make or enforce any law which

shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State de-

prive any person of life, liberty, or property, with-

out due process of law;...

Subdivisions a and c3 of Section 2241 of Title 28 of

United States Code provide in pertinent part:

Writs of habeas corpus may be granted by the

... District Courts...

The writ of habeas corpus shall not extend to a

prisoner unless——

He is in custody in violation of the Consticution or

laws ... of the United States

Section 690.10 of the Criminal Procedure Law of New

York provides in pertinent part:

Personal property is subject to seizure pursuant to

a search warrant if there is reasonable cause to

believe that it: ...

d

2. Is unlawfully possessed; or

3. Has been used, or is possessed for the purpose

of being used, to commit or conceal the commis-

sion of an offense; or

4. Constitutes evidence or tends to demonstrate

that an offense was committed or that a particular

person participated in the commission of an of-

fense. (Consolidated Laws of New York, Book

11A, McKinney’s 1971)

Section 710.20 of the Criminal Procedure Law of New

York provides in part:

Upon motion of a defendant who (a) is aggrieved

by unlawful or improper acquisition of evidence

and has reasonable cause to believe that such may

be offered against him in a criminal action, ...a

court may, under circumstances prescribed in this

article, order that such evidence be suppressed or

excluded upon the ground that it:

1. Consists of tangible property obtained by

means of an unlawful search and seizure under

circumstances precluding admissibility thereof in

a criminal action against such defendant; .. .

(Consolidated Laws of New York, Book 11A, Mce-

Kinney’s 1971)

Subdivision 2 of Section 710.70 of the Criminal Pro-

cedure Law of New York provides:

An order finally denying a motion to suppress evi-

dence may be reviewed upon an appeal from an

ensuing judgment of conviction notwithstanding

the fact that such judgment is entered upon a plea

of guilty. (Consolidated Laws of New York, Book

11-A, McKinney’s 1971)

5

Statement of the Case

On March 22, 1972, Judge Frank L. Gates of the

County Court of Suffolk County, New York, was pre-

sented with a number of magazines. After examining

them ex parte, he concluded that they were obscene and

signed a warrant authorizing the seizure of six conies

of each volume from the premises of the petitioner’s cor-

poration. Acting under the warrant, officers seized the

described material. It was later presented to a Suffolk

County grand jury which thereupon returned a 207 count

indictment charging the petitioner and others with the

crimes of conspiracy in the third and fourth degrees *

and obscenity in the first and second degrees.**

When proceedings on the indictment began, the peti-

tioner immediately moved to controvert the warrant and

to suppress the material seized under its authority, inter

alia, on the ground that “there was no basis in fact or

in law to declare the seized merchandise as ‘obscene.’ ”

This application was denied without a hearing.

* Penal Law of New York Sections 105.00 & 105.05 (Con-

solidated J-aws of New York, Book 39, McKinney’s 1967).

** Article 235 of the Penal Law, supra, provides in pertinent

part: “A person is guilty of obscenity in the first degree when,

knowing its content and character, he wholesale promotes or

possesses with intent to wholesale promote, any obscene mate-

rial.” (Sec. 235.06); “ ‘Wholesale promote’ means to manufac-

ture, issue, sell, provide, mail, deliver, transfer, transmute, pub-

lish, distribute, circulate, disseminate or to offer or agree to do

the same purposes of resale.” (Sec. 235.00 [5]); “A person is

guilty of obscenity in the second degree when, knowing its con-

tent and character, he: 1. Promotes, or possesses with intent

to promote, any obscene material. . .” (Sec. 255.05); “ ‘Promote’

means to manufacture, issue, sell, give, provide, lend, mail,

deliver, transfer, transmute, publish, distribute, circulate, dis-

seminate, present, exhibit or advertise, or to offer or agree to do

the same. (Sec. 235.00[4!)

6

The petitioner followed with a series of motions. He

unsuccessfully attacked the constitutionality of New

York’s former obscenity statute.* He also sought dis-

missal of the indictment on the ground that, as a matter

of law, the magazines in question were not obscene. Sum-

marily denying each of these motions, Judge Pierre G.

Lundberg of the County Court declined to examine the

magazines himself, relying instead on Judge Gates’ pre-

liminary finding of obscenity.

Subsequently, expressing the fear that the then newly

decided case of Matter of Miranda vy. Isseks** might

foreclose appellate review of the sufficiency of the grand

jury evidence, petitioner moved to reargue his previous

motion to have the court inspect that evidence. Judge

Lundberg denied the motion while offering the petitioner

the following assurance on the question of reviewability:

Neither the Criminal Procedure Law nor Matter

of Miranda v. Isseks, 41 App.Div.2d 176, prevent

[sic] the defendants from entering pleas of guilty

and thereafter appealing this Court’s prior deter-

mination based on the language of the C.P.L. and

the prior judicial determination by Judge Gates.

(Emphasis in original. )

Later in the course of the proceedings, the petitioner

moved for a hearing on the question of obscenity. Over

the District Attorney’s objection, the County Court (now

* Section 235.00(1) of the Penal Law of New York (Con-

solidated Laws of New York, Book 39, McKinney’s 1967) (re-

pealed L. 1974, ¢.989). That statute, following the Roth-Memoirs

formulation, prohibited a finding of obscenity unless the material

was “utterly without redeeming social value.” (See Roth v.

United States, 354 U.S. 476 [1957]; Memoirs v. Massachusetts,

383 U.S. 413 [1966].)

** 41 App. Div. 2d 176, 341 N.Y.S. 2d 541 (2nd Dept. 1973)

7

per respondent Melvyn Tanenbaum, J.) agreed to enter-

tain the motion, but only as an application for an inspec-

tion of the grand jury evidence.* Judge Tanenbaum

invited and received argument on the obscenity question.

He then examined the publications in camera and held

them sufficient to sustain the indictment.**

Thereafter, the petitioner agreed to plead guilty to

two counts of the indictment—one charging the felony

of obscenity in the first degree, the other charging ob-

scenity in the second degree, a misdemeanor. The counts

related to two different magazines.

At his allocution, the petitioner admitted what he had

never denied—that, knowing the content of the two maga-

zines, he had accepted orders for them and had shipped

them to storekeepers for resale. He insisted, however,

that, at the time he sold the magazines, he did not know

or believe that they were obscene. He maintained that,

had he believed otherwise, he would not have sold them.

Under the court’s questioning, the petitioner stated that

he had now come to understand that the two magazines

were obscene under the law controlling at the time of

their sale.

* The District Attorney’s opposition to the hearing followed

by over two years this Court’s holding that an accused in an

obscenity case must have available to him a prompt, pre-trial,

adversarial proceeding to test the obscenity vel non of the

materials seized. Heller v. New York, 413 U.S. 483 (1973).

** When Judge Tanenbaum announced his decision, he was

asked by counsel “to attach to the record, in the event an appeal

is necessary, as a sealed exhibit, the minutes of the instructions

given to the Grand Jury. I think we're entitled to that to

appear in the record.” The judge replied: “I think that will

happen as a matter of law anyway. If that becomes an issue

the Appellate Division will call for the minutes, I’m sure.”

Counsel then announced, “Let me just state for the record, in

the event of a conviction, that will be an issue. So that the

integrity of the minutes should be preserved.”

8

The plea was accepted and the petitioner was subse-

quently sentenced to serve concurrent terms of imprison-

ment of three years on the felony count and of sixty days

on the misdemeanor. No promise as to sentence had

preceded the plea.

The petitioner appealed from the judgment to the

Appellate Division, Second Department. Among the

arguments raised in that court was that “[t]he trial court

erred in refusing to declare the publications which were

the subject of the indictment not obscene as a matter

of law and thereupon, to dismiss the indictment .. .” The

Appellate Division affirmed the judgment without opin-

ion. Leave to appeal to the Court of Appeals was denied

by Chief Judge Charles D. Breitel.

The petitioner subsequently sought habeas corpus re-

lief in the United States District Court for the Eastern

District of New York. He contended that the statute

under which he was convicted was unconstitutional in

that neither on its face nor as construed prior to the

acts charged did it meet the specificity requirements of

Miller.* The petitioner also maintained that his convic-

tion could not stand because it was based upon magazines

which, as a matter of constitutional law, were not ob-

scene.

The District Court (per Pratt, J.) dismissed the pe-

tition holding that the statute was constitutional and that

federal habeas corpus review of the obscenity question

was foreclosed by the petitioner’s guilty plea. The Court

of Appeals affirmed on the opinion of the District Court.

The petitioner here seeks review of the narrow ques-

tion of whether access to federal review of the obscenity

* Miller Vv. California, 413 U.S. 15(1973)

9

vel non of the magazines was improperly denied him. He

contends that, by complying with New York’s statutory

scheme which preserved the issue for direct review in the

state appellate courts, he ensured that federal collateral

review would likewise be available to him. Moreover, the

petitioner submits that the question presented is an im-

portant one, as yet unsettled by this Court, involving the

availability of federal habeas corpus relief in state cases

which lie at the crossroads of the First and Fourth

Amendments.

ARGUMENT

Where a state statute affords the right to appeal

from the denial of a suppression motion even after

a plea of guilty, federal collateral review of the

issue is available notwithstanding Stone v. Powell

when the suppression motion is grounded upon an

alleged violation of First Amendment rights. In

ruling to the contrary, the Court below improperly

extended the reach of Stone v. Powell and effectively

overruled Lefkowitz v. Newsome. An important

question of federal law is therefore presented upon

which this Court should speak.

In Lefkowitz v. Newsome, 420 U.S. 283 (1975), this

Court held that “when state law permits a defendant to

plead guilty without forfeiting his right to judicial

review of specified constitutional issues, the defendant is

not foreclosed from pursuing those constitutional claims

in a federal habeas corpus proceeding.” (Jd. at 293.)

Indeed, speaking of the predecessors of the very provis-

ions in issue here, the Court observed that “[flor a New

York defendant whose basic defense consists of one of

those constitutional claims [enumerated in the statutes]

and who has already lost a pretrial motion to suppress

10

based on that claim, there is no practical difference in

terms of appellate review between going to trial and

pleading guilty.” (/d. at 289.)

The petitioner here, also a New York defendant,

followed the statutory procedure in much the way New-

some had, and with the same result. His suppression

motion was grounded on the contention that as a matter

of law the magazines in question were not obscene. If

he was correct, and we maintain that he was, he was

entitled to the traditional Fourth Amendment remedy of

suppression even though his claim bore much closer re-

lation to the First Amendment than to the Fourth.

Publications protected by the First Amendment are

neither contraband nor, in the context of this case, evi-

dence of a crime. Therefore they cannot be the object of

a search warrant. (See, CPL § 690.10, supra.) A war-

rant directing their seizure is defective, and material

seized solely under its authority is obtained unlawfully

and must be suppressed. (See, CPL § 710.20 [1].)

Hence, a statute framed in Fourth Amendment terms

operates to protect First Amendment rights in a case

where the interests served by both are inseparably inter-

woven. It is because traditional Fourth Amendment

language and remedies are involved, that, at first blush,

the principles of Stone v. Powell* seem to be implicated.

It is because the essence of petitioner’s claim involves

only First Amendment rights that the holding of that

case should not apply.

Having made and lost a motion to suppress, the peti-

tioner’s right to review of the claim on direct appeal

was guaranteed by statute (CPL §710.70[2]) just as

* 428 U.S. 465 (1965).

11

Newsome’s had been.* And, like Newsome, the peti-

tioner in fact pressed his claim on appeal from the judg-

ment. Petitioner’s case differs from Newsome’s, however,

not in the procedure by which the claim was preserved,

but in the nature and substance of the claim itself.

Unlike Newsome, the petitioner does not ground his

contention upon a judge-made rule which has as its func-

tion “the exclusion of truth from the factfinding process.”

(Stone v. Powell, supra, at 496, Burger, Ch.J., con-

curring). Nor does he ask the federal courts “to redeter-

mine an issue that has no bearing on the basic justice

of his incarceration.” (Jd. at 491, n.31).

Instead, he seeks review of a claim that goes to the

very heart of the State’s power to impose punishment

upon him. Plainly, if the obscenity question was incor-

rectly resolved in the State court, then petitioner is not

guilty and faces criminal sanctions for exercising his

First Amendment rights. **

* Judge Lundberg’s decision simply acknowledged that fact.

He had declined to view the magazines in the context of a

motion to inspect grand jury evidence, choosing instead to rely

on the preliminary determination of Judge Gates. Judge Lund-

berg quite correctly recognized that, since the Gates obscenity

ruling was subject to appellate review even after a plea of guilty,

so too would be the underlying merit of his own orders relating

to the same question. Moreover, even absent the statutory pro-

visions involved, Judge Lundberg’s order, unchallenged vy the

District Attorney, independently constituted an express reserva-

tion of the obscenity issue preserving it for appeal. See, e.g.,

United States v. Zudick, 523 F.2d 848, 851-852 (3rd Cir. 1975);

United States v. Mann, 451 F.2d 346, 347 (2nd Cir. 1971);

United States v. Doyle, 348 F.2d 715 (2nd Cir. 1965): United

States v. Consiglio, 391 F.Supp. 564, 569 (D. Conn. 1975).

** The petitioner’s acknowledgment of obscenity made at his

allocution does not detract from the strength of his argument

here. His statement has no more bearing on his present con-

tention than does his repeated insistence iuat at the time he

[Footnote continued on following page]

12

The petitioner moved to suppress on proper grounds

and was entitled to rely on the statute that preserved

his right to appeal even after a guilty plea. The very

existence of the statute made it unreasonable for the

prosecution to entertain an expectation of finality when

the plea was offered—and, if the statute did not alert

the prosecution to the possibility of appeal, Judge Lund-

berg’s order surely must have.*

The petitioner chose to forego the long and expensive

process of trial on the obs enity issue, opting instead to

present it as a question of law at a higher level. He did

so with the assurance of state law and of the court of

conviction that he would have that opportunity. His

decision was not extraordinary since “. . . obscenity vel

non is not an issue of fact with respect te which the

jury’s finding has its usual conclusive effect. It is rather

an issue of constitutional law that must eventually be

decided by the court.” United States v. A Motion Picture

Film Entitled “I Am Curious—Yellow,” 404 F.2d 196,

sold the magazines he did not believe them to be obscene. It

is settled that the personal belief of an accused as to the

obscenity of the materials he sells is not relevant to his guilt

or innocence. See, Hamling v. United States, 418 U.S. 87, 119-

124 (1974). Moreover, the general quality and effect of a guilty

plea in an obscenity case differs from the ordinary since an

erroneous ruling on the question of obscenity vel non is “logically

inconsistent with the valid establishment of .. . guilt,” and

is therefore hardly rendered “irrelevant” by a guilty plea. See,

Menna v. New York, 423 U.S. 61, 62 n.2 (1975).

*It is of no consequence to this petition that the opinion of

the District Court upon which the Circuit Court affirmed ad-

dressed only the question of whether Judge Lundberg’s order

established, in and of itself, a so-called conditional plea. The

theory that the obscenity question was preserved by statute as

well was fully briefed in the Circuit Court and was answered

on the merits by the District Attorney. It therefore raises

simply a question of law which this Court may certainly address.

See, e.g., Giordenello v. United States, 357 U.S. 480, 484-485 n.2

(1957); Sabbath v. United States, 391 U.S. 585, 588 n.1 (1968).

P|

13

199 (2nd Cir. 1968). See, also, Jenkins v. Georgia, 418

U.S. 153 (1974).

The petitioner duly presented his claim in the State

appellate courts. Nothing in the nature of his claim,

nothing in the statute by which it was preserved, and,

more important, nothing in the policy underlying Stone v.

Powell, supra, suggests that access to the federal courts

should have been refused him.

In denying federal review, the Court of Appeals has

decided an important issue of far-reaching effect. It has

held that Stone v. Powell, supra, bars habeas corpus

relief whenever a petitioner’s claim relates in any way to

the Fourth Amendment, and that Lefkowitz v. Newsome,

supra, has been effectively overruled. Because these issues

are of great moment, this Court should agree to review

them and grant this petition.

CONCLUSION

For all of the foregoing reasons, the petitioner's

application for a writ of certiorari should be granted.

Dated: Brooklyn, New York

February 8, 1978

Respectfully submitted,

RHODES & FISHER

Counsel to the Petitioner

16 Court Street

Suite 1210

Brooklyn, New York 11241

212/624 - 3784

STEVEN W. FISHER

BARRY GENE RHODES

Of Counsel

APPENDIX

la

APPENDIX A

Memorandum and Order

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Docket No. 77 C 1081

——

ROBERT BROWN,

Petitioner,

—against—

MELVYN TANENBAUM, et al.,

Respondents.

et?

PRATT, J.:

By habeas corpus, 28 U.S.C. § 2254, petitioner seeks

relief from a judgment entered April 2, 1976 in the

County Court of the State of New York, Suffolk County,

convicting him, upon his plea of guilty, of the crimes of

obscenity in the first and second degrees, and sentencing

him to serve concurrent terms of imprisonment of three

years and of sixty days, respectively. His conviction

was affirmed without opinion by the Appellate Division,

Second Department, on February 13, 1977. On April 6,

1977 leave to appeal to the New York Court of Appeals

was denied by Chief Judge Breitel.

For the reasons set forth below, petitioner’s request

for habeas corpus relief is denied and the petition is

dismissed.

I,

On April 28, 1972 a Suffolk County grand jury re-

turned an indictment charging the petitioner and others,

2a

Appendix A-~-Memorandum and Order

in 207 counts, with the crimes of conspiracy in the third

and fourth degrees and obscenity in the first and second

degrees. On November 29, 1972, petitioner’s counsel

made an omnibus motion seeking, inter alia, inspection

of the grand jury minutes and dismissal of the indict-

ment on the grounds that the evidence before the grand

jury was not legally sufficient to sustain the indictment.

In its decision denying this motion, the court noted:

The titles [of the magazines] included in this

multi-count indictment are the same titles included

in the search warrant issued by this Court on

March 22, 1972 (Hon. F. L. Gates). After seru-

tinizing each of said publications, Judge Gates

made a preliminary determination that each of

said publications is obscene before issuing the

warrant. * * * This resolves in my mind the ques-

tion—whether the titles included in counts 2-207,

inclusive, are obscene pursuant to Penal Law

§ 235.00. The Grand Jury may find on the basis

of the material itself that it contains all the statu-

tory elements of being obscene including but not

limited to the lack of redeeming social value.

People vy. Overstock Book Co., Inc., No. 555/72,

Mem. at 2 (Suffolk County Ct., Mar. 8, 1973).

Thereafter, petitioner again moved to dismiss the in-

dictment on the grounds, inter alia, that the material was

not obscene as a matter of law and that the obscenity

statutes were unconstitutional. This motion was sum-

marily denied on May 8, 1973. By motion dated May 2,

1973, petitioner sought reargument of the November 29,

1972 motion to inspect the grand jury minutes and to

dismiss for legal insufficiency. In its decision denying

the motion to reargue, the court concluded:

Neither the Criminal Procedure Law nor Matter

of Miranda v. Isseks, 41 App. Div. 2d 186, prevent

3a

Appendix A—Memorandum and Order

[sic] the defendants from entering pleas of guilty

and thereafter appealing this Court’s prior deter-

mination based on the language of the C.P.L. and

the prior judicial determination by Judge Gates.

People v. Overstock Book Co., Inc., No. 555-72,

Mem. (Suffolk County Cp., May 23, 1973)

(emphasis in original).

Finally, “after intensive consultation with his counsel”,

Petition 15, petitioner entered pleas of guilty to two

counts—one charging a felony, one a misdemeanor-—in

full satisfaction of the 207 count indictment.

Il.

In support of his application for habeas corpus re-

lief, petitioner contends (1) that the controlling statute

under which he was convicted, New York Penal Law

{| 235.000(1), which was repealed by Laws of 1974, Ch.

989, was constitutionally invalid and, (2) that as a

matter of law the materials underlying his convictions

were not obscene. Recognizing, however, that one who

enters a counseled, voluntary guilty plea generally “may

not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior

to the entry of the guilty plea”, Tollett v. Henderson, 411

U.S. 256, 267 (1973), petitioner first seeks to show that

his two contentions on the merits are properly cognizable

in this habeas corpus proceeding.

Ill.

A federal court in a habeas corpus proceeding may

not take cognizance of petitioner’s contention that as a

matter of law the materials underlying his conviction

were not obscene if his counseled guilty plea constitutes

4a

Appendix A—-Memorandum and Order

a waiver of this issue. See Menna v. New York, 423

U.S. 61 (1975); Tollett v. Henderson, supra. A widely

recognized exception to the waiver rule of Menna and

Tollett is that a plea entered upon a clear understanding

that it will not foreclose further judicial review of specifi-

cally reserved issues of law will not operate as a bar to

such further review. See Lefkowitz v. Newsome, 420

U.S. 283 (1975); United States v. Zudick, 523 F.2d 848

(CA 3, 1975); United States v. Mann, 451 F.2d 346

(CA 2, 1971).

Petitioner claims that the exception to the waiver rule

applies here. He points to the Suffolk County Court’s

language in denying his motion to reargue on May 23,

1973 and maintains that this statement quoted supra had

put all parties on notice that the issue of the sufficiency

of the grand jury evidence, and, hence of the obscenity

vel non of the magazines in question, would be preserved

for review even in the face of the entry of a guilty plea.

According to petitioner, “what is in issue is whether his

[the court’s] unambiguous statement plausibly gave rise

to an expectation by all concerned that the question of

the sufficiency of the evidence would survive a plea of

guilty. Cf. Lefkowitz v. Newsome, 420 U.S. 283, 290

(1975).” Reply Brief for Petitioner at 5-6.

IV.

Petitioner’s reliance on this May 23, 1973 statement

as evidence of a conditional guilty plea is without merit.

First, the court’s May 23 decision must be read in the

context in which it was made. In the affidavit support-

ing petitioner’s motion to reargue, counsel had urged in

connection with the inspection of the grand jury minutes

that a guilty verdict after trial would preclude an appeal

based on the legal insufficiency of the evidence presented

5a

Appendix A—Memorandum and Order

to the grand jury. It was in response to this argument

that the court correctly stated that such an appeal was

precluded by neither the Criminal Procedure Law nor

by the cited case, the correct law being that a properly

framed guilty plea could be entered which preserved the

reviewability of the obscenity vel non of the magazines

on appeal. What the court did was to suggest a guilty

plea as a solution to counsel’s point that a trial would

preclude his objection to the grand jury’s action. The

court did not attempt to suggest the manner in which

such a guilty plea should be entered.

Second, it is reasonable to assume that, should the

petitioner take the suggested solution, the court envi-

sioned a clearly conditional plea expressly reserving these

issues for appellate review. See Lefkowitz v. Newsome,

supra. In the instant case, however, the guilty plea ac-

tually entered was painstakingly unequivocal and uncon-

ditional. See Petition, Ex. F.

As explained by the Supreme Court in Lefkowitz v.

Newsome, supra:

Once the defendant chooses to bypass the orderly

procedure for litigating his constitutional claims

in order to take the benefits, if any, of a plea of

guilty, the State acquires a legitimate expectation

of finality in the conviction thereby obtained.

New York, however, has chosen not to treat a

guilty plea as * * * a “break in the chain of

events” with regard to certain claims raised in

pre-trial proceedings * * *. The guilty plea oper-

ates simply as a procedure by which the constitu-

tional issues can be litigated without the necessity

of going through the time and effort of conducting

a trial, the result of which is foreordained if the

6a

Appendix A—Memorandum and Order

constitutional claim is invalid. The plea is entered

with the clear understanding and expectation by

the State, the defendant, and the Courts that it

will not foreclose judicial review of the merits of

the alleged constitutional violations.

420 U.S. at 289-90.

There was no such “clear understanding and expectation”

among the prosecutor, the judge, and the petitioner here.

Neither the trial judge, the judges of the New York

Appellate Division, nor one judge of the New York Court

of Appeals could find such a clear understanding and

expectation of a conditional plea; the prosecutor, an

alleged party to the agreement, denies its existence; and

the record of the plea proceedings is completely barren

of any mention of a clear, express, conditional plea which

reserved review of the obscenity vel non of the magazines

for this or any other court.

V.

Petitioner also contends that the statute under which

he was convicted was constitutionally invalid. Unlike the

issue of the obscenity vel non of the magazines, such a

contention is directly reviewable in this federal habeas

corpus proceeding. However, like petitioner’s attempt to

raise the issue of the obscenity vel non of the magazines,

his contention is without merit.

When the indictment was returned in 1972, New

York’s controlling obscenity statute, admittedly consistent

with the then prevailing obscenity test established in

Roth v. United States, 354 U.S. 476 (1957), and Memoirs

v. Massachusetts, 383 U.S. 413 (1966), provided:

Ta

Appendix A—Memorandum and Order

Any material or performance is “obscene” if

(a) considered as a whole, its predominant appeal

is to prurient, shameful or morbid interest in nu-

dity, sex, excretion, sadism or masochism and (b)

it goes substantially beyond customary limits of

candor in describing or representing such matters

and (c) it is utterly without redeeming social

value.

N.Y. Penal Law § 235.00(1), repealed, Laws of

1974, Ch. 989.

On June 21, 1973, however, the Supreme Court decided

Miller v. California, 413 U.S. 15 (1973), which vacated

a conviction obtained under a California obscenity statute

similar to New York’s, and rejected the Roth-Memoirs

test. The Court held that the test for obscenity would

thereafter be:

(a) whether the “average person applying con-

temporary community standards” would find that

the work, taken as a whole, appeals to the prurient

interest * * *, (b) whether the work depicts or

describes, in a patently offensive way, scxual con-

duct specifically defined by the applicable state law,

and (c) whether the work, taken as a whole, lacks

serious literary, artistic, political or scientific value.

Id. at 24.

Two days after the Miller decision, the Supreme Court

vacated a judgment obtained under N.Y. Penal Law

§ 235.00 and remanded the case to the New York Court

of Appeals for reconsideration in light of Miller. On

remand, the New York court construed its statute as

being limited to “offensive depictions of ultimate sexual

acts, masturbation, excretory functions, lewd genital ex-

hibiton, i.e., exactly that sort of thing described in the

8a

Appendix A—Memorandum and Order

Miller opinion * * *.” People v. Heller, 33 N.Y.2d 314,

328 (1973). In short, the court of appeals held that the

then existing statute “more than complied with the Miller

limits as written and construed.” Jd. at 331.

Petitioner argues that the statute under which he was

convicted was unconstitutional because it did not meet

the specificity requirements announced in Miller, and that

the subsequent judicial construction offered in Heller, pub-

lished after the commission of the acts charged in the

indictment, cannot be retroactively applied to avoid its

constitutional deficiency. But the New York Court of ,

Appeals did not legislate. All it did in Heller was review

the long line of pre-Miller cases construing § 235.00 and

determine that the statute had never been construed with

less specificity than Miller required. Since the statute had

always complied with the Miller specificity standards,

$ 235.00 gave constitutionally fair notice of the conduct

proscribed and, as applied to petitioner, did not unexpect-

edly make criminal that which was not previously thought

to be criminal. See Ward v. Illinois, 45 U.S.L.W. 4623

(1977); United States v. Hamling, 418 U.S. 87 (1974).

Pre-Miller construction of § 235.00 afforded defendant

adequate notice that his conduct was proscribed, compare,

e.g., Petitioner’s Exhibit “Young Boys and Oral Sex”

with materials held to be obscene in People v. G.J. Dis-

tributors, Inc., 20 N.Y.2d 104 (1967), and one federal

court has already found tenable Heller’s holding that

$ 235.00 as construed always embodied the constitutional-

ly sufficient definition of obscenity. See DeSalvo v. Codd,

386 F.Supp. 1293, 1300 (S.D.N.Y. 1974) (3-judge

court). Thus, the interpretation given to § 235.00 in

Heller provided the same “clarifying gloss” found accept-

able in Hamling v. United States, supra, and, petitioner’s

assertion to the contrary notwithstanding, did not con-

stitute an unconstitutional ex post facto application.

9a

Appendix A—Memorandum and Order

VI.

Accordingly, petitioner’s request for federal habeas

corpus relief is denied and the petition is dismissed. The

stay of execution of petitioner’s sentence ordered by the

undersigned will, therefore, be vacated 10 days after the

filing of this memorandum and order. Certificate of

Probable Cause is issued.

SO ORDERED.

Dated: Westbury, New York

October 19, 1977.

/s/ GEORGE C. PRATT

GEORGE C. PRATT

US. District Judge

10a

APPENDIX B

Order Dated January 16, 1978

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

77-2130

At a stated Term of the United States

Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New

York, on the 16th day of January,

one thousand nine hundred and

seventy-eight.

Present: HONORABLE WILFRED FEINBERG

HONORABLE JAMES L. OAKES

Circuit Judges

HONORABLE INZER B. WYATT

District Judge

oS rg <p ip —

ROBERT BROWN,

Petitioner-Appellant,

—against—

MELVYN TANENBAUM, a Judge of the County Court of

the State of New York, Suffolk County, HENRY

O’BRIEN, District Attorney of Suffolk County,

BENJAMIN WARD, Commissioner of Correction of

the State of New York, and the SHERIFF OF THE

COUNTY OF SUFFOLK,

Respondents-A ppellees.

—_—eEe ee

Appeal from the United States District Court for the

Eastern District of New York

lla

Appendix B—Order Dated January 16, 1978

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed on the opinion of Judge

Pratt, dated October 19, 1977.

(Signed) WILFRED FEINBERG

(Signed) JAMES L. OAKES

Circuit Judges

(Signed) INZER B. WYATT

District Judge