People v. Illardo, 48 N.Y.2d 408 (1979)

An obscenity statute’s affirmative defenses, which allow for exceptions based on the dissemination of material to scientific, educational, or governmental institutions, or for certain non-managerial employees, are constitutional under due process and equal protection clauses.

Summary

Joseph Illardo was charged with promoting obscene material for selling a magazine. He challenged the constitutionality of New York’s obscenity statute, specifically the affirmative defenses in Penal Law § 235.15. He argued that the terms used in the defenses were vague and violated due process, and that the exclusion of bookstore employees from certain defenses violated equal protection. The Buffalo City Court agreed with Illardo, but the Erie County Court reversed. The New York Court of Appeals upheld the statute, finding the affirmative defenses constitutional because the language was sufficiently definite and the classifications had a rational basis.

Facts

Illardo sold a magazine deemed obscene to an undercover police officer. He was charged with violating Penal Law § 235.05(1), which prohibits the promotion of obscene material. Illardo did not contest that the magazine was obscene. His defense rested solely on the argument that the affirmative defenses in § 235.15 were unconstitutional, rendering the entire statute invalid.

Procedural History

The Buffalo City Court granted Illardo’s motion to dismiss, declaring subsections 1 and 2 of § 235.15 unconstitutional. The People appealed to the Erie County Court, which reversed the City Court’s order. Illardo then appealed to the New York Court of Appeals, which granted leave to appeal.

Issue(s)

1. Whether the language of Penal Law § 235.15(1), specifically the terms “scientific,” “educational,” “governmental,” and “other similar justification,” is unconstitutionally vague in violation of due process?

2. Whether Penal Law § 235.15(2), which provides an affirmative defense to certain non-managerial employees of motion picture theaters but not to bookstore employees, violates the equal protection clause?

Holding

1. No, because the terms used are within the compass of the ordinary citizen and the phrase “other similar justification” is limited by the specific words preceding it, thus providing sufficient definiteness.

2. No, because the legislative classification is not arbitrary and bears a fair and substantial relation to a manifest evil reasonably perceived by the Legislature.

Court’s Reasoning

The Court addressed the vagueness challenge, stating that while statutes must be informative on their face, they need not achieve mathematical certainty. The Court noted that the language of the section was taken almost verbatim from the Model Penal Code. It found the terms “scientific”, “educational”, and “governmental” to be within the understanding of the ordinary citizen. The Court applied the principle of ejusdem generis to the phrase “other similar justification,” stating that it is limited by the preceding specific words and does not expand the scope of the section beyond those terms. As the court stated, “Condemned to the use of words, we can never expect mathematical certainty from our language”.

Regarding the equal protection challenge, the Court stated that legislative classifications must only have a reasonable basis and bear a fair and substantial relation to some manifest evil reasonably perceived by the Legislature. The Court reasoned that the Legislature could have viewed the risk of further dissemination of obscene material by bookstore purchasers as indicative of aggravated culpability, or it may have thought that motion picture theaters employ a larger percentage of non-managerial personnel than bookstores. Therefore, there was a rational basis for the distinction, and the classification did not violate equal protection. The court stated, “the statute might thus permissibly be seen as ‘addressing itself to the phase of the problem which seems most acute to the legislative mind’”.