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New York Court Reviews Evidence in Lawsuit Against Theatre for Showing Alleged Pornographic Materials


On January 22, 1971, while the Petitioner Amusement Corporation was the operator of a Theatre, it and its theatre manager were charged with criminal information violating the obscenity statute Penal Law. The basis of the charges was the showing of two allegedly obscene sex motion pictures and two allegedly obscene advertising trailers.

Pursuant to an order to show cause, a hearing was held at Criminal Term of the District Court on the issues as to whether an adversary hearing should be conducted to determine whether the films and trailers are obscene, and whether a warrant should be issued for their seizure. The Court ordered that such a hearing be held and it was thereafter adjourned.

In the interim the instant Article 78 proceeding, in the nature of prohibition, was commenced, the basis of which is the Petitioner Amusement Corporation’s contention that the District Court lacks jurisdiction to conduct an adversary hearing.

The adversary hearing is a relatively new concept in the court’s jurisprudence, arising out of the United States Supreme Court’s growing concern within the last decade for protection of the rights afforded under the First Amendment of the United States Constitution.

In a case involving the petitioner herein, the United States Court of Appeals for the Second Circuit held that the adversary hearing requirement prescribed was applicable to the seizure of motion picture films as well as books, theorizing that by reason of the size of its prospective audience, the seizure of a film would be analogous to a mass seizure of sex books as was involved in another related case.

It appears that if the District Court or any court of comparable criminal jurisdiction is to fulfill its function, it must be afforded the means to do so. Clearly, it has the power to issue search warrants upon a showing of probable cause and, were it not for the United States Supreme Court’s concern for the protection of First Amendment rights, the ordinary Fourth Amendment safeguards would apply to the seizure of indecent obscene material in the same manner as to the seizure of other types of child contraband.

There has been no showing that adequate protection of the Petitioner Amusement Corporation’s constitutional rights would not be afforded in an adversary hearing in the District Court and, in the absence of such a showing, the requirement that such hearings be conducted in the Supreme Court would serve no purpose other than the emasculation of the District Court’s authority and the delay of justice. An adversary hearing, since it is a requirement, must be considered an integral part of the criminal prosecution to which it relates, and in the Court’s view the District Court’s inherent powers are sufficiently broad to authorize its holding of an adversary hearing under Section 794 of the Code of Criminal Procedure.

Furthermore, to preclude the District Court of Nassau County or any comparable criminal court from holding an adversary hearing and to insist that such a hearing be held in accordance with Section 22–a, is to misunderstand and misconstrue the purpose and nature of the adversary hearing contemplated by the United States Supreme Court requirements. The purpose of the adversary hearing is only to determine whether there exists a legitimate case that the material is obscene. It is not the purpose of such a hearing to reach a final adjudication of the question on the merits, as is contemplated by an injunction proceeding brought pursuant to the Code of Criminal Procedure.

Accordingly, the within petition for an order to prohibit the Judges of the District Court of Nassau County from proceeding with an adversary hearing to determine whether the films and the advertising trailers are obscene is hereby denied and the petition dismissed.

Media is one of the main source of information but sometimes too much of it can poison the minds of the people especially the younger generation. The government all over the world associate violence and heinous crimes to media influence. If you think that movies, commercials or print ads topics can harm the young minds, ask the Nassau County Family Lawyer together with the Nassau County Assault Attorney from Stephen Bilkis and Associates.

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