Opinion
November 14, 1977
Appeal from the Oneida Supreme Court.
Present — Marsh, P.J., Moule, Cardamone, Simons and Dillon, JJ.
Order unanimously affirmed, without costs. Memorandum: The definition of obscenity set forth in subdivision 9 of section 410.00 Penal of the Penal Law is clearly unconstitutional (see Miller v California, 413 U.S. 15, 25; Plaza Dev. Corp. v Vogt, 52 A.D.2d 396). Since the record does not support the People's theory that the materials contained in the vehicle were "judicially declared to be obscene" pursuant to the standards set forth in section 235.00 Penal of the Penal Law rather than subdivision 9 of section 410.00 Penal of the Penal Law, there is no need to determine whether subdivision 9 is severable from the remainder of the statute.