Opposition Brief — Mishkin v. New York

£ihLEeE D

iar a MAR 15 19/6

IN THE {

Supreme Court of the United States -

October Term, 1975

No. 75-1117

EDWARD MISHKIN and

WHOLESALE BOOK CORPORATION,

Petitioners,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Rosert M. MorcentHau

District Attorney

New York County

Attorney for Respondent

155 Leonard Street

New York, New York 10013

(212) 732-7300

Peter L. ZimrotH

Rosert K. Hoop

Assistant District Attorneys

Of Counsel

S98 A NOAA

ee eee te roe i et rne mma Te ieee Lot a Oe ee aa eT

TABLE OF CONTENTS

Preliminary Statement .

Introduction .

The Proceedings in the Trial Court

Point I—This Court has no jurisdiction to review the

petitioners’ claim that the search warrant issued

on January 12 was defective on its face. There

has been no showing that the state courts dealt

with this claim .

Point II—The Court has no jurisdiction to review the

petitioners’ claim that they were entitled to an

adversary determination of obscenity before the

seizure of their books and films .

Point I1I]—The so-called ‘‘waiver’’ which the peti-

tioners challenge here had no bearing upon this

case ..

Point IV—The petitioners’ contention that they

should have been permitted to withdraw their

guilty plea does not raise a federal question

Conclusion |

PAGE

16

21

25

26

29

II

TABLE OF AUTHORITIES

PAGE

Cases:

A Quantity of Books v. Kansas, 378 U.S. 205 (1964) 8, 23-

24 n. 14

Costello v. United States, 350 U.S. 359 (1956) 24

Durley v. Mayo, 351 U.S. 277 (1956) 16

Heller v. New York, 413 U.S. 482 (1973) — 13, 13 n. 9, 14, 28-

24 n. 14, 28 n. 15, 29

Henry v. Mississippi, 879 U.S. 448 (1965) 20, 23

Holt v. United States, 218 U.S. 245 (1910) 24

Johnson v. Massachusetts, 390 U.S. 511 (1968) 21

Kaplan v. California, 413 U.S. 115 (1973) 12 n. 7

Klinger v. Missouri, 13 Wall. 257 (1871) 16

Lawn v. United States, 355 U.S. 339 (1958) 24

Lefkowitz v. Newsome, 420 U.S. 283 (1975) 22, 23

Massachusetts v. Painten, 389 U.S. 560 (1968) 21

Memphis Natural Gas v. Beeler, 315 U.S. 549 (1942) 6

Miller v. California, 413 U.S. 15 (1973) 12 n. 7, 13, 28,

28 n. 15, 29

Mishkin v. New York, 383 U.S. 502 (1966) 27

North Carolina v. Alford, 400 U.S. 25 (1970) 27

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) 12n.7

Parker v. North Carolina, 397 U.S. 790 (1970) 20

People v. Dixon, 29 N.Y.2d 55, 323 N.Y.S.2d 825, 272

N.E.2d 329 (1971) 27

People v. Esajerre, 35 N.Y.2d 463, 363 N.Y.S.2d 931,

323 N.E.2d 175 (1974) 22

PAGE

People v. Heller, 29 N.Y.2d 319, 327 N.Y.8.2d 628, 277

N.E.2d 651 (1971) 22, 29

People v. Heller, 33 N.Y.2d 314, 352 N.Y.8.2d 601, 307

N.E.2d 805 (1973) 14, 22

People v. MeKennion, 27 N.Y.2d 671, 313 N.Y.S.2d

876, 261 N.E.2d 910 (1970) 27

People v. Vidal ,26 N.Y.2d 249, 309 N. y. Ss. 2d 336, 257

N.E.2d 886 (1970) : any? 20

Rage Books, Inc. v. Leary, 301 F. Supp. 546 (S.D.N.Y.

1969) ; ” 4n.3

Redlich v. Capri Cinema, 75 Mise. 2d 117, 347 N.Y.S.

2d 811 (Sup. Ct., Spee. Term, New York County

(1973), reversed, 43 A.D.2d 27, 349 N.Y.S.2d 697

(Ist Dept. 1973), leave denied, 33 N.Y.2d 974, 353

N.Y.S.2d 738, 309 N.F.2d 136 (1974) 13 n. 8, 29

Roaden v. Kentucky, 413 U.S. 496 (1973) 13,13 n.9

Smith v. Mississippi, 373 U.S. 238 (1963) 21

Stembridge v. Georgia, 343 U.S. 541 (1952) 16

United States v. Blue, 384 U.S. 251 (1966) 24

United States v. Calandra, 414 U.S, 388 (1974) 24

United States v. Orito, 413 U.S. 189 (1973) 12n.7

United States v. 12 200-ft. Reels of Film, 413 U.S, 128

(1973) aSeies 12 n. 7, 28

Wainwright v. City of New Orleans, 392 U.S. 598

(1968) 21

Iv

New York Civil Practice Law and Rules

Rule 6330

New York Criminal Procedure Law

§70.10(1)

§180.70

§210.20

§220.60(3)

| §470.05(2)

§470.15(3) (e)

§470.15(4)

§710.10

$710.60

§710.70(2)

§710.70(3)

New York Penal Law

§235.00

§235.05

§135.10(2)

United States Code

28 U.S.C. §1253

28 U.S.C, §1257(3)

Supreme Court Rules

Rule 22(1)

Rule 23(1)(e)

Statutory Provisions and Other Authorities:

PAGE

13 2.8

16 n. 11

16

2n.1

17

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-1117

Ea

Epwarp Miskin and Wuo.esaLe Book CorpoRATION,

Petitioners,

against

Tne PEOPLE OF THE State OF NEw York,

Respondent.

—e~-

ee i i

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Preliminary Statement

On April 30, 1973, in the New York State Supreme

Court, New York County, Edward Mishkin and Wholesale

Book Corporation pleaded guilty, Mishkin to Osscenrry IN

Tur Seconp Dearen (N.Y. Penal Law §235.05) and Whole-

sale Book Corporation to Osscenrtry 1X THE First DEGREE

(N.Y. Penal Law §235,06). On April 2, 1974, that court

sentenced Mishkin to a fine of $1,000 or, alternatively, a

one-year term of imprisonment and imposed a $10,000 fine

upon Wholesale Book Corporation. By an order entered

September 30, 1975, the Appellate Division, First Depart-

2

ment, of the New York State Supreme Court unanimously

affirmed these judgments without opinion. Leave to appeal

the order of the Appellate Division to the New York State

Court of Appeals was denied on November 3, 1975. Mish-

kin and the corporation now seek a writ of certiorari to

review the order of the Appellate Division.’

Introduction

By an indictment filed April 19, 1972, the petitioners,

Edward Mishkin and Wholesale Book Corporation [here-

inafter Wholesale], of which Mishkin was an officer, were

charged with 56 counts of obscenity in the first degree.

Indictment No. 1925/72. Each count of the indictment

alleged that, on specified dates, Mishkin and Wholesale had

‘*possessed with intent to wholesale promote’’ six or more

copies of an obscene motion picture film or book. More

than one year later, the petitioners were permitted to plead

guilty under the first count of the indictment, Mishkin to

the reduced charge of obscenity in the second degree, a

misdemeanor, and Wholesale to obscenity in the first de-

gree, a felony. Nearly another year passed before Mishkin

and Wholesale were sentenced.

On appeal, Mishkin and Wholesale contended that the

search warrant pursuant to which certain obscene material

1. The instant petition was docketed in this Court on February

4, 1976, 127 days after the entry of the order of the Appellate Divi-

sion affirming the petitioners’ convictions and 93 days after the Court

of Appeals denied the petitioners’ leave to appeal to that court. There-

fore, the petition is not “in time.” Supreme Court Rules, rule 22(1),

398 U.S. 1033. The petitioners did not request an extension of time

within which to file their petition.

7 >]

3

had been allegedly seized was defective on its face and,

therefore, the trial court should have suppressed the mate-

rial despite the petitioners’ failure to press for a hearing

on the question. In addition, Mishkin and Wholesale

adopted the allegation of one of their attorneys in the trial

court that 103,000 books and motion picture films were

seized, claimed that the seizure was without a prior ad-

versary hearing, argued that the right to such a hearing

cannot be, and was not, in fact, waived, and contended that

the seizure was illegal. Finally, Mishkin and Wholesale

asserted that the trial court erred in refusing to permit

them to withdraw their pleas of guilty.

The Appellate Division rejected these contentions and

unanimously affirmed Mishkin and Wholesale’s convictions.

Subsequently, the Chief Judge of the Court of Appeals

denied the petitioners’ application for leave to appeal.

Now, upon virtually the same brief submitted to the Appel-

late Division, Mishkin and Wholesale ask this Court to

grant a writ of certiorari to review the Appellate Division’s

decision.

The Proceedings in the Trial Court

On January 12, 1972, the Honorable Edward K. Pincus,

a judge of the New York City Criminal Court, issued a

warrant authorizing the immediate search of Wholesale’s

offices and warehouse at 48-52 East 21st Street and 45 East

20th Street in Manhattan. The warrant authorized the

seizure of an alleged obscene motion picture film entitled

‘*Sex Nurse’’ and corporate books and records evidencing

the wholesale promotion of obscene material. The warrant

4

limited to six the number of copies of the alleged obscene

material which could be seized (A61).* *

The warrant was issued upon the affidavit of Detective

Donald Gray (A61-64). In his affidavit, Detective Gray

stated that he had probable cause to believe that Wholesale,

at its offices on the fifth floor of 48-52 East 21st Street

and at its warehouse on the 12th floor of 45 East 20th Street,

possessed copies of the film, ‘‘Sex Nurse,’’ and books and

records evidencing the wholesale promotion of obscene ma-

terial. Detective Gray based his belief upon the following

information and observations: (1) on December 21, 1971,

one Ralph Borello sold the film, ‘‘Sex Nurse,’’ to an under-

cover police officer at 136 West 42nd Street in Manhattan;

(2) a judge of the Criminal Court viewed the film, found it

to be obscene, and, on December 29, 1971, issued a search

warrant for the film; (3) on the following day, Borello of-

fered to sell 500 rolls of film, including ‘‘Sex Nurse,’’ to an

undercover police officer at 136 West 42nd Street; (4) later

that day, an unidentified individual, driving an automobile

registered to Wholesale at its office address, delivered the

500 rolls of film to Borello and the undercover officer at 136

West 42nd Street and then returned to Wholesale’s offices;

(5) upon executing a warrant authorizing the search of

136 West 42nd Street, the detective found purchase invoices

issued by Wholesale, including an invoice for ‘‘Sex Nurse;’’

2. Numerical references preceded by “A” are to Appellants’

Appendix as filed in the Appellate Division, which, we understand,

has been made available to this Court.

3. The six-copy limit is a reflection of N.Y. Penal Law

§235.10(2), which provides that one who possesses six or more

copies of an obscene article is presumed to possess them with intent

to promote them, and of the decision in Rage Books, Inc. v. Leary,

301 F.Supp. 546 (S.D.N.Y. 1969), requiring the prosecution to

return to the defendant all but six copies of each book seized by the

police without a prior adversary determination of obscenity.

5

(6) on January 11, 1972, an undercover police officer saw an

unidentified individual take cartons, similar to those used

in the delivery of the 500 rolls of film, from Wholesale’s

warehouse address, load them into the automobile pre-

viously seen by the police, and deliver the cartons to several

midtown bookstores; (7) according to a real estate agency,

Wholesale rented the fifth floor of 48-52 East 21st Street

and the 12th floor of 45 East 20th Street (A62-64).

On January 14, 1972, two days after the issuance of the

search warrant, Wholesale, Mishkin, and a third party were

arraigned in the Criminal Court on a felony complaint

charging them with obscenity in the first degree. New

York City Criminal Court Docket Nos. A2784, A2789,

A2785A. The complaint alleged that Ralph Borello, an

agent of Wholesale, had sold 500 rolls of obscene film to a

police officer at a bookstore located at 136 West 42nd Street

on December 30, 1971, and that a sample of this film had

been found obscene by a judge of the Criminal Court. It

further alleged that Detective Gray, ‘‘in executing a search

warrant on January 13, 1972, * * * [had] found approxi-

mately 100,000 obscene books + magazines and approxi-

mately 3000 movies’’ at Wholesale’s offices and warehouse

and that ‘‘Judge Edward Pincus [had] on January 13,

1972, viewed samples of the above said books + magazines

and held them to be obscene.’”*

4. Based upon papers that were subsequently filed in the trial

court, it appears to have been agreed that Judge Pincus was present

at the time of the execution of the January 12 search warrant and

that the judge inspected various books (if not also films), found them

to be obscene, and authorized their seizure by supplementing the

original warrant (A68, A98). However, because Mishkin and

Wholesale did not seek a preliminary hearing on the felony complaint,

did not challenge the validity of the January 12 warrant, and did not

contest their guilt, these allegations were never proved.

6

The case lingered in the Criminal Court for three

months, during which time Mishkin and Wholesale could

have sought a preliminary hearing on the felony complaint.

At such a hearing, the People would have been required

to establish reasonable cause to believe that the petitioners

had committed a felony. N.Y. CPL §180.70. Mishkin and

Wholesale could have demanded the production of the al-

legedly obscene material referred to in the complaint and

required a determination that there was reasonable cause

to believe that it was obscene. However, the petitioners

chose not to avail themselves of this opportunity.

Then, on April 19, 1972, the felony complaint was

superseded by the indictment upon which the petitioners’

convictions are based. The indictment contained 56 counts.

The first 32 counts concerned allegedly obscene books or

films which Mishkin and Wholesale were alleged to have

possessed, with intent to ‘‘wholesale promote,’’ on January

13, 1972, the date upon which, according to the felony com-

plaint, the January 12 search warrant had been executed

(A5-36). The next nine counts of the indictment concerned

allegedly obscene films (including the film ‘‘Sex Nurse’’)

which Mishkin and Wholesale were alleged to have pos-

sessed on December 30, 1971, the date upon which, accord-

ing to the search warrant’s supporting affidavit and the

felony complaint, an agent of Wholesale sold 500 rolls of

obscene film (including ‘‘Sex Nurse’’) to an undercover

police officer. The possession of the films specified in these

nine counts was also alleged to have occurred on February

28, 1972. The record does not otherwise suggest the sig-

nificance of that date (A37-45). February 28 is also the

date upon which, in the indictment’s remaining 15 counts,

y

(

Mishkin and Wholesale were alleged to have possessed

additional allegedly obscene books (A46-60).

On July 12, 1972, two of the several attorneys who were

to represent Mishkin and Wholesale in the trial court sub-

mitted an omnibus motion which requested, inter alia, ‘‘[a]

hearing to determine the admissibility of certain evidence

seized and an order suppressing the evidence illegally

seized pursuant to CPL [New York Criminal Procedure

Law section] 710.10 et seq. in the event it was acquired

illegally’? and ‘‘{aJjn order pursuant to CPL 210.20(1) (h)

dismissing each count of the indictment on the grounds

that the procedure instituting these criminal proceedings

did not sufficiently protect the distribution of constitu-

tionally protected material and thus impose[d] an uncon-

stitutional prior restraint on the distribution of literature

protected by the First and Fourteenth Amendments to the

United States Constitution’’ (A65-66).

In an affidavit submitted in support of this motion, one

of the attorneys, after alleging certain facts, advanced two

alternative grounds for the suppression of evidence: (1)

“the warrant authorizing the initial search and seizure, the

execution thereof, the subsequently issued warrants, and

the resulting search and seizure were violative of defend-

ants’ First and Fourteenth Amendment rights in that it

authorized a seizure of expression presumptively protected

by the First Amendment without a prior determination of

the obscenity thereof following an adversary proceeding”’

and (2) ‘‘the warrant authorizing the initial search and

seizure was procured and issued for the sole unconstitu-

tional purpose and as a subterfuge to authorize a general

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8

exploratory search in violation of the Fourth Amendment”’

(A79). Counsel concluded this portion of his affidavit,

‘‘Consequently, a full hearing should be conducted to judi-

cially investigate facts in support of defendants’ claim”’

(A80).°

With respect to the request for the dismissal of the in-

dictment, counsel, apparently relying upon A Quantity of

Books v. Kansas, 378 U.S. 205 (1964), argued that a pre-

seizure adversary hearing to determine the obscenity of the

material to be seized was constitutionally mandated and

that a prosecution based upon material seized without such

a hearing resulted in an unconstitutional application of

New York Penal Law section 235.06 (A90-92).

In an affidavit submitted in opposition to the petition-

ers’ motion, the assistant district attorney asked that the

petitioners’ suppression motion be referred to the judge

who would try the case (A96). In a supplemental affidavit,

the prosecutor stated that only 32 of the indictment’s 56

counts involved material seized pursuant to search war-

rants and that the petitioners had taken no action since the

filing of the indictment for the return of this material on

the ground that it was not obscene. The prosecutor revealed

that the remaining counts of the indictment involved mate-

rial purchased from the petitioners by undercover police

officers. He argued that such purchases were not seizures,

and, therefore, prior judicial inquiry on the question of the

obscenity of the material was not required (A99-100).

5. Mishkin and Wholesale did not contend in the trial court, as

they did later in the Appellate Division and as they do now, that the

search warrant was defective on its face.

9

On November 24, 1972, New York State Supreme Court

Justice Harold Birns rendered a decision on the motion.

With respect to the petitioners’ request for a hearing on

their motion to suppress the physical evidence, the judge

referred the matter ‘‘to the trial part’’ (A103). The

judge denied the petitioners’ motion to dismiss the indict-

ment (A104). The judge noted that he himself had exam-

ined the material described in the indictment and found it

to be obscene.

More than five months later, Mishkin and Wholesale,

then represented by one of the able and experienced attor-

neys who represented them before the Appellate Division

below, chose to plead guilty. .\ hearing on their motion to

suppress had not been held, and the petitioners had still

taken no action to secure the return of seized material on

the ground that it was not obscene. As a result, of all the

factual allegations made in the trial court—those made in

the supporting affidavit to the January 12 search warrant,

in the felony complaint, in the indictment, in the supporting

affidavit to the petitioners’ omnibus motion, and in the

prosecutor’s affidavits in opposition—only those made in

the first count of the indictment were ever proved. It was

with respect to that count that the petitioners pleaded

guilty, Wholesale to obscenity in the first degree as charged

there and Mishkin to the reduced charge of obscenity in the

second degree (A116-17).

The assistant district attorney stated that these pleas

were acceptable to the People and placed on the record the

substance of the plea bargain. He informed the court that

his office would not recommend a jail sentence for Mishkin

10

in view of Mishkin’s promise to end his long career in

pornography. The prosecutor further informed the court

that a case was pending in the federal courts and that a

decision there might render the petitioners’ conduct non-

criminal. In such event, the People would join in the peti-

tioners’ motions to withdraw their pleas of guilty and move

to dismiss the indictment (A117-18).

In response to the court’s inquiry, Mishkin acknowl-

edged that he was an officer of Wholesale. The court then

advised Mishkin that, prior to the entry of a guilty plea,

one was presumed innocent and was entitled to a trial be-

fore a jury of 12 people and that conviction could result

only if all 12 jurors agreed. The court explained that a

conviction upon a plea of guilty, however, was the same as

a conviction after trial. Mishkin acknowledged that his

attorney had explained to him his ‘‘rights and privileges

under the jury trial system’’ (A119). The court then

asked whether Mishkin wished to tell the court anything.

Mishkin said that he did and asked for an opportunity to

speak with his attorney, an opportunity which the court

afforded. After speaking with his client, Mishkin’s attor-

ney told the court that Mishkin was concerned that his

contemplated move to Florida would be prevented by a

sentence of probation. The assistant district attorney

stated that his office would not object to the transfer of

supervisory responsibility from the New York Department

of Probation to the Florida authorities. The court indi-

cated that it did not consider probation supervision neces-

sary in view of Mishkin’s promise to end his involvement

in the pornography business (A119-21). The court asked

11

Mishkin whether or not he wished to plead guilty, and

Mishkin responded, ‘‘Yes, sir’’ (A121).

The assistant district attorney then asked Mishkin ques-

tions concerning the facts alleged in the first count of the

indictment. Mishkin acknowledged that, on January 13,

1972, a police officer, acting pursuant to a search warrant,

had found a quantity of allegedly obscene material at

Wholesale’s East 21st Street address. He admitted that

the book specified in the first count of the indictment,

‘‘Adam and Eve #1,’’ was among the material found. He

further acknowledged that Wholesale possessed that book

with the intent to resell it, that he was aware of the cor-

poration’s possession of the book, that he was familiar with

‘‘certain laws relative to the publication, to what publica-

tions can be made in relation to certain material relating

to personal activity of an individual,’’ and that the cor-

poration’s possession of the book constituted ‘‘a more than

a possible violation of those rules of law’’ (A123-24).

The prosecutor informed the court that ‘‘Mr. Mishkin

does have quite a bit of prior involvement in this business

end it would be our position that he’s a large scale whole-

saler.’’ He explained that the generous plea bargain was,

nevertheless, acceptable to his office in view of the valuable

court time saved by the plea, at both the trial and appellate

levels, and in view of Mishkin’s promise to leave the por-

nography business (A124). The assistant district attorney

concluded by noting that the parties had agreed that the

pleas were entered subject to a decision in a case pending

before this Court (A124-25).

12

On October 4, 1973, more than five months later, Whole-

sale and Mishkin moved to withdraw their pleas of guilty.

The petitioners also renewed their previously abandoned

motion to suppress evidence alleged to have been illegally

seized and again requested a hearing on the motion (A105-

06). In an affidavit submitted in support of these motions,

Mishkin averred that he had ‘‘pleaded guilty because he

mistakenly believed he and Wholesale Book Corporation

were charged with violating a constitutional statute and

because the prosecutor overcharged [them] with 56 counts”’

(A107). He argued that Judge Birns should have dis-

missed the indictment because the statute was unconstitu-

tionally vague and the material specified in the indictment

was constitutionally protected.® He said that the judge’s

decision denying the petitioners’ motion to dismiss had

been ‘‘substantially impaired by the United States Supreme

Court’s decisions on June 21, 1973.’ He continued,

‘*(Sjinee pleading guilty, your affiant has learned of a de-

cision of the Honorable [New York State] Supreme Court

Judge Gelinoff [sic] which held that the New York obscen-

ity statute was unconstitutional under the United States

6. The petitioners had previously advanced this argument in

their omnibus motion as basis for the dismissal of the indictment in

addition to the argument that the indictment was invalid because of

the absence of a pre-seizure adversary determination of obscenity.

7. Miller v. California, 413 U.S. 15 (1973); Paris Adult The-

atre I v. Slaton, 413 U.S. 49 (1973); Kaplan v. California, 413

U.S. 115 (1973); United States v. 12 200-ft. Reels of Film, 413

U.S. 123 (1973) ; United States v. Orito, 413 U.S. 139 (1973). In

these cases, the Court revised the standards which the states must

use to identify obscene material in order to regulate disssemination

without infringing upon first amendment rights. The Court replaced

the requirement, then in effect, that material must be “utterly without

redeeming social value’’ before it may be classified ‘‘obscene’’ with

the question of ‘“‘whether the work, taken as a whole, lacks serious

literary, artistic, political, or scientific value.” Miller v. California,

413 U.S. at 24-25.

13

Supreme Court decisions of June 21, 1973’? (A107-08).°

Mishkin reasoned that he was thus ‘‘in fact not guilty of

violating CPL [sic] 235.01 et seq.,’’ asserted that he had

‘pleaded guilty as a result of mistake and misunderstand-

ing, which could not have been reasonably foreseen,’’ and

concluded that ‘‘the plea was therefore not understandably

and intelligently executed’’ (A108).

With respect to his application to renew his motion to

suppress and his request for the return of materials seized,

Mishkin again relied upon Miller v. California, 413 U.S.

155 (1973), and the cases decided with Miller. In addition,

he cited Heller v. New York, 413 U.S. 488 (1973) and

Roaden v. Kentucky, 413 U.S. 496 (1973), cases decided

on June 25, 1973.°

8. Mishkin may have been referring to Kedlich v. Capri Cinema,

75 Misc.2d 117, 347 N.Y.S.2d 811 (Sup. Ct., Spec. Term, New York

County, 1973), in which Judge Gellinoff found N.Y. CPLR 6330,

which authorized injunctive relicf against the publication of ma-

terial “obscene” within the meaning of N.Y. Penal Law $235.00, and

the §235.00 definition of “obscene” unconstitutionally vague. That

decision was subsequently reversed by the state courts. Hedlich v.

Capri Cinema, 43 A.D.2d 27, 349 N.Y.S.2d 697 (Ist Dept. 1973),

leave denicd, 33 N.Y.2d 974, 353 N.Y.S.2d 738, 309 N.E.2d 136

(1974).

9. In Heller, the Court held constitutionally permissible the

seizure of a nonobscene motion picture film without a pre-scizure ad-

versary hearing to determine the obscenity of the film under the fol-

lowing circumstances: (1) a judge of the New York City Criminal

Court had viewed the film, found it to be obscene, and issued a search

warrant for its seizure; (2) the seizure was for the purpose of pre-

serving the film as evidence in a criminal prosecution and not for the

purpose of destroying the film; (3) no pretrial motion was made for

the return of the film or for its suppression as evidence; and (4) the

question of the film's obscenity was fully litigated in a trial commenced

47 days after the seizure of the film and the arrest of its alleged

possessor. However, the Court remanded the case to the New York

Court of Appeals for reconsideration of the defendant's attack upon

the constitutionality of New York's obscenity laws in the light of

Miller and the cases decided with it.

In Roaden, the Court reversed a conviction for exhibiting an ob-

scene film where the film had not been viewed by a judicial officer

prior to its seizure and was seized without a warrant. The Court

held that the defendant’s motion to suppress the film as evidence on

the ground of its illegal seizure was improperly denied,

14

In a decision entered March 15, 1974, the court denied

the petitioners’ motions. The court noted that the New

York Court of Appeals had, in People v. Heller, 33 N.Y.2d

314, 352 N.Y.S.2d 601, 8307 N.E.2d 805 (1973) (on remand),

reconsidered the New York obscenity laws in light of this

Court’s decision in Willer, as directed by the Court, and had

held them constitutionally valid (.A113-14). Since the al-

leged invalidity of the obscenity laws had been the only

ground advanced by the petitioners in support of their

motion to withdraw their pleas, the court denied the motion

without a hearing. And because it would not permit the

withdrawal of the guilty pleas, the court refused to enter-

tain the petitioners’ ‘‘claim of illegally seized evidence’’

(A114).

Two weeks later, Wholesale and Mishkin were sen-

tenced. At sentencing, the assistant district attorney re-

iterated the terms of the plea bargain. He informed the

court that, based upon evidence gathered by the police de-

partment and by a special investigative grand jury, he

believed that ‘‘both the corporation and Mr. Mishkin were

very, very large wholesalers in New York City’s area, if not

the country.’’ He recommended that fines be imposed

(A130-31).

Still another attorney spoke in behalf of Mishkin and

the corporation. He asserted that, because this Court had

remanded the //eller case on the issue of the constitutional-

ity of the New York obscenity laws rather than deciding the

question itself, the terms of the plea bargain required that

the petitioners be permitted to withdraw their guilty pleas.

Counsel stated, ‘‘[WJe never agreed to allow the highest

court in New York to decide the constitutionally [sic] [of

15

the] obscenity ordinance’’ (A132-33). When the court

noted that the agreement between the parties had been that

the petitioners could withdraw their pleas if the New York

obscenity laws were held unconstitutional and that the ab-

sence of such a holding left the petitioners without ‘‘any

federal costitutional question that would affect’’ the

guilty pleas, counsel explained that he ‘‘just wanted to

state this for the record because [his] client asked [him]

to raise all constitutional issues’’ (A133-34).

Counsel then argued that the petitioners should be per-

mitted to withdraw their guilty pleas because Mishkin had

not admitted that he knew that the book, ‘‘Adam and Eve

#1,’’ was obscene. Counsel asserted that Mishkin still did

not know that the book was obscene and, therefore, did not

admit that he was guilty (A134-36). The court answered

that Mishkin might well believe that ‘‘the character and

content of the material are something for the benefit of the

general public at large’’ and that the book was not ‘‘lewd,

lacivious [sic], obscene, or anything else,’’ but that belief

alone did not make him innocent of the charge, particularly

in view of the nature of the material and Mishkin’s record

(A135-36).

Counsel again thanked the court for ‘‘allowing [him]

to make the record here’’ (A136). He then spoke briefly

of Mishkin’s background and mentioned that the seizure

of the obscene material had cost Wholesale considerable

sums of money. Mishkin did not wish to be heard. The

court imposed the maximum fines allowed (A137-38).

16

POINT I

This Court has no jurisdiction to review the peti-

tioners’ claim that the search warrant issued on January

12 was defective on its face. There has been no show-

ing that the state courts dealt with this claim.

One who petitions this Court to review the judgment

of a state court must establish that the Court has juris-

diction to do so. Durley v. Mayo, 351 U.S. 277, 281-82 (1956) ;

Stembridge v. Georgia, 348 U.S. 541, 547 (1952); Memphis

Natural Gas v. Beeler, 315 U.S. 549, 651 (1942); Klinger v.

Missouri, 13 Wall. 257, 263 (1871). Petitioners seek to in-

voke the jurisdiction vested in this Court by 28 U.S.C.

§1257(3) (62 Stat. 929)."° Petition at 2... Under this pro-

vision, petitioners are required to demonstrate that the

state court judgment which they ask this Court to review

rested upon federal grounds. Sve, e.g., Durley v. Mayo,

supra. Indeed, where ‘‘it appears that the judgment [of

the state court] might have rested upon a_non-federal

ground,’’ this Court has held that it has no jurisdiction.

Stembridge v. Georgia, 343 U.S. at 547 (emphasis in ori-

10. §1257(3) provides in relevant part:

Final judgments or decrees rendered by the highest court of

a State in which a decision could be had, may be reviewed by

the Supreme Court as follows:

* * *

(3) By writ of certiorari, * * * where any title. right,

privilege or imnnity is specially set up or claimed under

the Constitution, treaties or statutes of, or coninission held

or authority exercised under, the United States.

11. We presume that the petitioners’ reference to 28 U.S.C.

§1253 (62 Stat. 928), which empowers this Court to hear direct ap-

peals from decisions of district courts of three judges, is the result

of a typographical or otherwise inadvertent mistake.

17

ginal). To give effect to this requirement, the rules of this

Court provide that one who petitions the Court for cer-

tiorari must state ‘‘the way in which [the federal ques-

tions] were passed upon by the [state] court * * *.’’? Su-

preme Court Rules, rule 23(1)(¢), 398 U.S. 1035.

The petitioners have not, and cannot, satisfy this re-

quirement because there is no indication that the state ap-

pellate couris, in fact, dealt with the petitioners’ federal

claim. In the trial court, Mishkin and Wholesale asserted,

iter alia, that the seizure by the police of the allegedly ob-

scene material specified in the indictment had violated their

rights under the first and fourteenth amendments, in that

the seizure had been effected without a prior adversary de-

termination of obscenity (A79). Mishkin and Wholesale

also contended that the seizure had violated their rights

under the fourth and fourteenth amendments. They alleged

that the January 12 warrant had been issued ‘‘as a subter-

fuge to authorize a general exploratory search’? (A79). On

these grounds, Mishkin and Wholesale demanded the sup-

pression and return of all material seized and requested

‘fa full hearing * * * to judicially investigate facts in sup-

port of [their] claim’’ (A79-80). Subsequently, Mishkin

and Wholesale chose not to press their request for a hear-

ing and, prior to a determination of their motion to sup-

press, pleaded guilty.

On appeal to the Appellate Division, Mishkin and

Wholesale raised, for the first time, the objection, advanced

here, that the search warrant issued by Judge Pineus on

January 12 was defective on its face. Petitioners’ brief in

the Appellate Division, Point I; Petition, Point I. Since

18

this objection had not been raised in the trial court, the

Appellate Division was, under New York Law, without

jurisdiction to entertain it as a matter of law. N.Y. CPL

§$§470.05(2), 470.15(4). The Appellate Division does have

jurisdiction to reverse or modify judgments ‘‘[a]s a mat-

ter of discretion in the interest of justice.’’ N.Y. CPL

§470.15(3)(c). However, since the Appellate Division af-

firmed the petitioners’ convictions without opinion, it is

clear that the Appellate Division did not exercise whatever

discretion it might have had in this case.

The Appellate Division had good reason not to exercise

its discretion. For, although the petitioners characterized

their attack as being upon the face of the warrant, the

resolution of their claim depended (and depends) upon

factual matters about which the record in the Appellate

Division was silent.

At the heart of petitioners’ attack in the Appellate

Division was their assertion, which is repeated here, that

103,000 books and movies were seized pursuant to the war-

rant, as it was originally drawn. Petitioners’ brief in the

Appellate Division at 6; Petition at 8. From this asser-

tion, Mishkin and Wholesale proceeded to the suggestion,

also repeated here, that the warrant authorized the seizure

of ‘‘obscene’’ material with no further particularization of

such material. Petitioners’ brief in the Appellate Division

at 6; Petition at 8. Upon this assertion and this sugges-

tion, Mishkin and Wholesale concluded, as they do here,

that the warrant was defective on its face, that a hearing

was not necessary to make that finding, and that the trial

court should have recognized as much and summarily or-

Bie RY “Be 1 yer * arog cnt er . — -

PO eT GPE Ne ae PS OF OPN LIE TREE ok y. x ——eE—eeEeeEeEeEeEeEeEEeEeEeEeEeEee —

19

dered the suppression of the material seized on this ground

even though it was not requested to do so.

Yet, it seems clear that, contrary to the petitioners’

suggestion, 103,000 items were not seized under the author-

ity of the January 12 warrant as originally written. Nor

did that warrant authorize the seizure of ‘‘obscene’’ mate-

rial without further particularization. That warrant au-

thorized only the seizure of the film, ‘‘Sex Nurse,’’ which

had allegedly been viewed by a Criminal Court judge two

weeks earlier and found to be obscene.”

At the time this narrowly drawn warrant was executed,

it seems (or at least there appears to have been no dispute

below) that large quantities of allegedly obscene material

were found by the police. However, there also appears to

have been no dispute that Judge Pincus was present at the

time of the execution of the January 12 warrant and that

he inspected various books (if not also films), found them

to be obscene and authorized their seizure by supplementing

the original warrant. Thus, the petitioners’ assertion that

103,000 items were seized pursuant to the warrant, as

originally drawn, is not supported by any evidence and

is probably incorrect.

Beyond the very narrow area of agreement which can

be discerned in the pleadings, motion papers, and other

12. Mishkin and Wholesale suggested in the Appellate Division,

as they do here, that Judge Pincus, who issued the warrant, was not

justified in relying upon a finding of obscenity by another judge,

absent a “showing of the basis for the conclusion” of that judge.

Petitioners’ brief in the Appellate Division at 6-9: Petition at 8-10.

But Judge Pincus was not obliged to find that the described film was

obscene as a matter of law. He only had to find probable cause to

believe that it was obscene. For this finding, Judge Pincus was cer-

tainly justified in relying upon the recent finding of a fellow Criminal

Court judge, whom Judge Pincus doubtless knew personally.

20

such material which make up the record of the proceedings

in the trial court, lies a morass of unproven allegations

and, beyond that, a void. As a consequence, from the

record we do not know, as a matter of proven fact, what

items of allegedly obscene material Judge Pincus examined

at the time of the execution of the January 12 warrant,

the manner in which that examination was conducted, how

the warrant was supplemented, what seizures were author-

ized, what exactly was seized, or when seizures were made.

Since the state of the record before the Appellate Division

was wholly attributable to the petitioners’ decision not to

attack the ‘‘face’’ of the warrant in the trial court, not to

litigate fully the legality of the seizure, and not to contest

their guilt, there was good reason for the Appellate Divi-

sion not to review the petitioners’ untimely objection.

The clear statutory limitation upon the Appellate Divi-

sion’s power to review questions not raised in the trial

court and the strong reasons which existed for declining

to exercise its limited discretionary power to review such

questions in the interest of justice provided the Appellate

Division with independent and adequate state grounds

upon which to base its decision. See Henry v. Mississippi,

379 U.S. 443 (1965); see also Parker v. North Carolina,

397 U.S. 790, 798-99 (1970). Certainly, a state appellate

court’s refusal to entertain a claim raised for the first time

on appeal serves a legitimate state interest. See Henry v.

Mississippi, 379 U.S. at 447. That interest is the avoidance

of unnecessary expenditures of judicial and prosecutorial

resources in the litigation of cases which, had the defend-

ant made a timely objection, might have been dismissed

early in the criminal proceedings. See, e.g., People v. Vidal,

21

26 N.Y.2d 249, 254, 309 N.Y.S.2d 336, 257 N.E.2d 886 (1970).

Moreover, there is a clear interest, no less in the state appel-

late courts as in this Court, for appellate review to be

based upon a full and complete factual record. See Wain-

wright v. City of New Orleans, 392 U.S. 598 (1968) (con-

curring opinions) ; Johnson v. Massachusetts, 390 U.S. 511

(1968) ; Massachusetts v. Painten, 389 U.S. 560, 561 (1968) ;

Smith v. Mississippi, 373 U.S. 238 (1963).

POINT II

The Court has no jurisdiction to review the peti-

tioners’ claim that they were entitled to an adversary

determination of obscenity before the seizure of their

books and films.

As we have said before, Mishkin and Wholesale con-

tended, in the trial court, that the seizure by the police of

the allegedly obscene material specified in the indictment,

without a prior adversary determination of obscenity, vio-

lated their rights under the First and Fourteenth Amend-

ments.'* They sought two forms of relief: (1) they de-

manded the suppression and return of all material seized

and requested ‘‘a full hearing * * * to judicially investi-

gate facts in support of [their] claim’ (A79-80); and

(2) they asked that the indictment be dismissed, argu-

ing that a prosecution under New York Penal Law section

235.06, commenced without a prior adversary determination

13. Mishkin and Wholesale also contended, as we have said

before, that the seizure violated their rights under the fourth and

fourteenth amendments. They alleged that the January 12 warrant

was issued “‘as a subterfuge to authorize a general exploratory search”

(A79). The petitioners did not litigate this question below and do

not raise it here.

22

of obscenity, constituted an unconstitutional application of

that section (A90-92).

Judge Birns, to whom the petitioners’ motion was ad-

dressed, denied the petitioners’ request for the dismissal

of the indictment, citing People v. Heller, 29 N.Y.2d 319,

327 N.Y.S.2d 628, 277 N.E.2d 651 (1971), remanded on

other grounds, 413 U.S. 482 (1973), aff’d, 33 N.Y.2d 314,

352 N.Y.S.2d 601, 307 N.E.2d 805 (1972) (see note 9

supra). However, by referring their motion to suppress

to the trial part, Judge Birns afforded Mishkin and Whole-

sale an opportunity to pursue their constitutional claim

(A103-04). The judge’s obvious purpose was to permit

a hearing on the motion to suppress to be held by the trial

judge. See N.Y. CPL $710.60. But the petitioners did not

press their demand for a hearing, did not seek a final deter-

mination of their motion to suppress, and, five months after

Judge Birns’ decision, pleaded guilty.

New York, unhke most states, permits a defendant who

pleads guilty to preserve for appellate review his objection

to illegally seized evidence. But, in order to preserve his

claim for appeal, the defendant must fully litigate his sup-

pression motion in the trial court and obtain an ‘‘order

finally denying’’ his motion. N.Y. CPL §710.70(2); see

Lefkowitz v. Newsome, 420 U.S. 283, 289 (1975). By plead-

ing guilty before obtaining such an order, under New York

law Mishkin and Wholesale forfeited their right to appel-

late review of their objection. N.Y. CPL §710.70(3); see

People v. Esajerre, 35 N.Y.2d 463, 466, 363 N.Y.S.2d 931,

323 N.E.2d 175 (1974).

23

Therefore, the Appellate Division had an independent

and adequate (indeed, conclusive) state ground upon which

to reject the petitioners’ clainr that they were entitled to a

pre-seizure adversary determination of obscenity. Cer-

tainly, a state has a legitimate interest in discouraging

departures from a procedure which permits prompt appel-

late review of certain constitutional objections without the

necessity of trials at which the defendant cannot prevail.

See generally Henry v. Mississippi, 379 U.S. 443 (1965) ;

Point I supra; see also Lefkowitz v. Newsome, 420 U.S.

at 289-90. Consequently, Mishkin and Wholesale cannot

demonstrate that the state appellate courts relied upon fed-

eral grounds when they refused to review the petitioners’

claim that certain evidence had to be suppressed because it

had been seized without a prior adversary determination

of obscenity.

Petitioners also moved to dismiss the indictment on the

ground that there had been no pre-seizure adversary deter-

mination of obscenity. On that motion, there was a final

determination in the trial court. However, the denial of a

motion to dismiss the indictment on the ground of illegally

seized evidence does not raise a federal constitutional ques-

tion. Even if, in the circumstances of this ease, a pre-

seizure adversary hearing were constitutionally required,"

14. It is clear that such a hearing was not constitutionally required

here. This case falls squarely within the scope of the decision in

Heller v. New York, 413 U.S. 483 (1973). In Heller, as here, there

Was a pre-seizure judicial determination of obscenity. There, as here,

the ensuing seizure was for the purpose of preserving the allegedly

obscene material as evidence and not for the purpose of destroying it.

There, as here, the defendant chose not to avail himself of opportuni-

ties to challenge the seizure before trial. Moreover, in Heller, the

question of the obscenity of the seized material was fully litigated in a

(footnote continued on next page)

24

the Constitution would mandate only the suppression of

the evidence at trial. (And, as we have shown, the peti-

tioners withdrew their request for this relief.) The Con-

stitution would not mandate the dismissal of the indictment.

See United States v. Calandra, 414 U.S. 338, 344-45 (1974) ;

United States v. Blue, 384 U.S. 251, 255 (1966); Lawn v.

United States, 355 U.S. 339, 349-50 (1958); Costello v.

United States, 350 U.S. 359, 361-63 (1956) ; Holt v. United

States, 218 U.S. 245, 247-48 (1910). Of course, in New

York a court might dismiss an indictment if it finds that

the only evidence before the grand jury had been illegally

seized. N.Y. CPL §§210.20(1)(b), 70.10(1). However,

whether or not a New York court does so raises questions

of state, not federal, law.

trial commenced 47 days after the sizure. Here, Judge Birns, in

response to the petitioners’ contention, made in support of another

aspect of their omnibus motion, that the books and films specified in

the indictment were constitutionally protected (A&7-88), examined

the material and found it to be obscene (A104). This finding consti-

tuted an adversary determination of obscenity. Mishkin and Whole-

sale decided not to seek another such determination, by pressing for

a hearing on their motion to suppress, and pleaded guilty.

In approving the seizure in Hfeller, the Court stated, “This Court

has never held, or even implied, that there is an absolute First or

Fourteenth Amendment right to a prior adversary hearing applicable

to all cases where allegedly obscene material is seized. * * * In par-

ticular, there is no such absolute right where allegedly obscene material

is seized, pursuant to a warrant, to preserve the material as evidence

in a criminal prosecution.” 413 U.S. at 488 (citations omitted). The

Court specifically distinguished A Quantity of Book v. Kansas, 378

U.S. 205 (1964), relied upon by the petitioners. The Court described

that case as involving the “seizure of large quantities of books for the

sole purpose of their destruction.” 413 U.S. at 491.

25

POINT III

The so-called “waiver” which the petitioners chal-

lenge here had no bearing upon this case.

At the time of the petitioners’ arraignment on the fel-

ony complaint drawn shortly after their arest, the presiding

judge, the Honorable Hyman Solniker, entered the follow-

ing endorsement upon the official Criminal Court papers

attached to the complaint:

Counsel waives adversary proceeding and agrees to

turn over seizure to Police Dept. Counsel does not

waive any motions or hearing addressed to said seizure

and the obscenity thereof. /s/ H.S.

The record contains only unproven and frequently con-

flicting allegations concerning the meaning of this endorse-

ment and the discussions which led to its entry upon the

court papers. In an affidavit submitted in support of the

petitioners’ omnibus motion, one of the petitioners’ attor-

neys alleged that an assistant district attorney had, at the

time of the execution of the January 12 warrant, ‘‘threat-

ened the defendant’s attorney [not the affiant] with a re-

quest for $25,000 bail unless the attorney, in behalf of his

client, waived defendant’s First, Fourth and Fourteenth

Amendment rights and consented to the seizure, without

prior adversary hearing, or even prior judicial scrutiny,

of all the adult literature in the [Wholesale’s] warehouse’’

(A68). However, according to the assistant district at-

torney, it had been Mishkin’s attorney who had ‘‘suggested

that he would waive an adversary hearing if * * * [the

prosecutor] would consider making a lower bail applica-

tion’’ (A99). This conflict was never resolved.

26

In any event, regardless of the meaning of this

‘‘waiver’’ or the manner in which it had come about, it

had no bearing upon the case. In their omnibus motion,

Mishkin and Wholesale demanded the suppression and

return of material seized pursuant to the January 12 war-

rant on the ground that there had been no pre-seizure

adversary determination of obscenity and requested a

hearing on their application. The prosecution responded

by asking that the matter be referred to the trial part,

and the judge to whom the motion was addressesd so or-

dered. Thus, neither the parties nor the judge considered

the petitioners’ previous ‘‘waiver’’ to bar their objection

to the absence of a pre-seizure adversary determination of

obscenity. Subsequently, Mishkin and Wholesale abandoned

their motion to suppress and pleaded guilty. By so doing,

they rendered irrelevant both the meaning of the ‘‘ waiver’’

and the question whether it had been made voluntarily.

For this reason, this Court should decline to hear the peti-

tioners’ contentions.

POINT IV

The petitioners’ contention that they should have

been permitted to withdraw their guilty plea does not

raise a federal question.

Mishkin and Wholesale do not contest the voluntariness

of their guilty pleas or the propriety of the trial court’s

acceptance of them. They argue, instead, that they should

have been permitted to withdraw their pleas because (1)

they claimed they were innocent (Petition at 21) and (2)

‘*there was a mutual mistake of fact and law in the giving

and acceptance’’ of their pleas (Petition at 22).

27

At sentencing, nearly one year after the petitioners

pleaded guilty, one of Mishkin’s attorneys, for the first

time, advanced the argument that the pleas had been “taken

in a constitutionally insufficient manner, [in] that the de-

fendant never, when he did enter the plea of guilty, admit

knowledge of the character or content of the material’? (A

134). Counsel added, ‘‘[E]ven today he [Mishkin] doesn’t

admit he is guilty’? (A135). But, at the time of the entry

of the guilty pleas, Mishkin, who had had considerable

experience with the obscenity laws [sce, e.g., Mishkin v.

New York, 383 U.S. 502 (1966)], had admitted that he

‘knew about’’ the material stored in Wholesale’s ware-

house and that it was probably obscene within the meaning

of those laws (A123-24). Thus, this so-called “‘claim of

innocence,’? as the trial court recognized (A135-36),

amounted simply to an argument that one can escape

criminal liability under the obscenity laws merely by as-

serting one’s sincere belief that the materials, alleged to

be obscene in the legal sense, actually benefitted the general

public and were not obscene in the broader, philosophical

sense.

In any event, the acceptance of a guilty plea, even by

one who claims innocence, does not violate the United

States Constitution. See North Carolina v. Alford, 400 U.S.

29 (1970). An entirely seperate question, and the one

which the petitioners seem to be raising, is whether the trial

court abused its discretion under New York law when it

refused to allow the petitioners to withdraw their pleas.

N.Y. CPL §220.60(3); compare People v. McKennion, 27

N.Y.2d 671, 313 N.Y.S.2d 876, 261 N.E.2d 910 (1970), with

People v. Dixon, 29 N.Y.2d 55, 323 N.Y.S.2d 825, 272 N.E.2d

329 (1971). That is a matter of state law alone.

Z

= Seba. |

28

Petitioners also claim that they should have been per-

mitted to withdraw their guilty pleas because they had

been predicated upon a mutually mistaken interpretation of

the relevant law. At the time of the entry of the petitioners’

guilty pleas, on April 30, 1973, the assistant district attor-

ney informed the trial court that cases were then pending

before this Court and that, if these cases were decided in

such a way that the prosecution of Mishkin and Wholesale

became inconsisent with the principles of ]:xw enunciated

by the Court, the prosecution would join in the petitioners’

motions to withdraw their pleas of guilty and move to dis-

miss the indictment (A117-18, 124-25).!° On October 3,

1973, more then five months later, Mishkin and Wholesale

moved to withdraw their guilty pleas on the ground that

Mishkin had ‘‘pleaded guilty [for himself and for the eor-

poration] because he mistakenly believed he and Wholesale

Book Corporation were charged wtih violating a constitu-

tional statute and because the prosecutor overcharged

[them] with 56 counts’’ (A107). The petitioners suggested

that the mistake was revealed in the ‘‘United States Su-

preme Court decisions on June 21, 1973,’’ and the sub-

sequent decision of New York State Supreme Court Justice

Gellinoff (A107-08).

In Miller v. California, 413 U.S. 15 (1973), and the eases

decided with it on June 21, 1973, this Court modified the

constitutional standards for the identification of obscene

material subject to state regulation. However, in one of

those cases, United States vy. 12 200-ft. Reels of Film, 413

U.S. 123 (1973), the Court expressly left to the state courts

15. The prosecutor was obviously referring to Miller v. California,

413 U.S. 15 (1973), and the cases decided with Miller (see note 7

supra), and to Heller v. New York, 413 U.S. 483 (1973).

29

the construction of state legislation in light of the modified

standards. 413 U.S. at 130 n. 7.

In Heller v. New York, 413 U.S. 483 (1973), decided four

days later, the Court declined to consider the constitutional-

ity of the New York obscenity laws and remanded that ques-

tion to the Court of Appeals for reconsideration in light

of Miller and the cases decided with it. 413 U.S. at 494.

On remand, the Court of Appeals held that the degree of

protection afforded first amendment rights by the New

York statutory standards execeded the protection provided

by the standards announced by this Court. Accordingly,

the Court of Appeals held the New York standards con-

stitutionally permissible. People y. Heller, 33 N.Y2d 314,

352 N.Y.S.2d 601, 307 N.E.2d 805 (1973). Then, in Redlich

v. Capri Cinema, 32 N.Y.2d 974, 353 N.Y.S.2d 738, 309

N.E.2d 136 (1974), the Court denied leave to appeal from

the Appellate Division’s reversal of Judge Gellinoff’s con-

flicting decision. Redlich vy. Capri Cinema, 43 A. D.2d 27,

349 N.Y.S.2d 697 (1st Dept. 197 3).

In essence, then, the petitioners pleaded guilty with the

understanding that they could withdraw their pleas of

guilty if this Court declared the statute under w hich they

had pleaded unconstitutional, or if a New York court did s

That did not happen.

30

Conclusion

The petition should be denied.

Respectfully submitted,

Rosert M. MorcentHav

District Attorney

New York County

Peter L. Zimrotu

Rosert K. Hoop

Assistant District Attorneys

Of Counsel

March, 1976

Bi FED THR oOL1IQUu