People v. Kirkpatrick, 32 N.Y.2d 17 (1973)

A bookseller’s knowledge of the obscene content of material can be inferred from the circumstances of its sale, including the conspicuous nature of the material, the seller’s handling of the material, and the seller’s role in ordering and displaying the material.

Summary

Defendants, bookstore employees, were convicted of selling obscene material. The trial court found that the magazine “Zap No. 4” was obscene and that the defendants had knowledge of its contents, both through a statutory presumption and an inference drawn from the evidence. The Court of Appeals affirmed the conviction, holding that the circumstances surrounding the sale of the magazine, including its conspicuous display and the defendants’ handling of it, supported an inference of knowledge. The Court also upheld the validity of the statutory presumption that a seller of obscene material knows its contents, finding that it was supported by the probabilities of knowledge in such a situation.

Facts

Defendant Dargis managed a bookstore and ordered/reordered “Zap No. 4”, unpacking and shelving copies, and personally sold 20-25 copies. He admitted glancing at the ending pages and noticing the “Adults Only” label. Defendant Kirkpatrick co-managed a bookstore. He ordered 150 copies of “Zap No. 4” and personally sold 25-30 copies. The magazine had distinct, similar drawings throughout.

Procedural History

Defendants were convicted in the trial court for violating Penal Law § 235.05 for selling obscene material. The Appellate Term affirmed the convictions. The New York Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the evidence was sufficient to establish that the booksellers knew of the obscene contents of the magazine.
2. Whether the statutory presumption that a seller of obscene materials knows the contents of what they sell is valid (Penal Law, § 235.10, subd. 1).

Holding

1. Yes, because the trial court properly inferred knowledge from the defendants’ handling, ordering, and selling of the magazine, as well as its conspicuous display.
2. Yes, because the statutory presumption is based on the probabilities of knowledge and is not unconstitutional.

Court’s Reasoning

The court reasoned that an inference of knowledge can be drawn from possession of contraband, especially when the possessor is actively involved in its sale and distribution. The court cited People v. Reisman, stating, “Generally, possession suffices to permit the inference that the possessor knows what he possesses… This, of course, is an elemental inference based on common experience and all but universal probabilities.” The court emphasized that the defendants’ actions in ordering, unpacking, displaying, and selling the magazine, combined with its “conspicuous display,” supported the inference of knowledge. The court also upheld the statutory presumption of knowledge, finding that it was based on a rational connection between the act of selling obscene material and the likelihood that the seller is aware of its contents. The court noted that this presumption does not eliminate the need for the prosecution to prove guilt beyond a reasonable doubt. The court addressed concerns about censorship, referencing Smith v. California, but distinguished that case by noting that the New York statute allows for a defense based on lack of knowledge. The court stated, “Eyewitness testimony of a bookseller’s perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial”. The court also mentioned the practicality of enforcing obscenity laws, stating that it “behooves the courts to sustain rational efforts at control and not, indirectly on attenuated constitutional speculations, to overthrow serially every restrained effort at control.”