Opinion
July 13, 1962
Charged in an indictment that he possessed with intent to sell allegedly obscene magazines in violation of section 1141 of the Penal Law defendant was found guilty by a jury in the County Court of Schenectady County of 11 of its counts, 1 of which was dismissed by the court after the trial. The test of obscenity under the statute is whether, taken as a whole, the dominant theme of the material alleged to be violative is so entirely lewd and lascivious as to constitute "hard-core pornography". ( People v. Richmond County News, 9 N.Y.2d 578.) Applying this standard to the exhibits upon which the convictions were based we find them not to fall sufficiently within the proscribed area as to establish defendant's guilt beyond a reasonable doubt. ( People v. Richmond County News, supra; Roth v. United States, 354 U.S. 476; People v. Urban, 15 A.D.2d 480.) Judgment of conviction reversed on the law and the facts and the indictment dismissed. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.