Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Carton, J.A.D.
Defendants appeal from convictions of (1) conspiring to maintain a building for purposes of lewdness and to commit acts of lewdness with others in private, in violation of N.J.S. 2 A:98-1, 2 A:133-2 and 2 A:115-1; (2) permitting a building to be used for purposes of lewdness and assignation with reasonable cause to know of such use, in violation of N.J.S. 2 A:133-2(b), and (3) possessing with intent to utter obscene publications, in violation of N.J.S. 2 A:115-2.
Defendant Marianna, or Monique, Von Cleef was sentenced on the conspiracy charge to a term of 18 months in the County Penitentiary (four months to be served in custody and the balance on probation). Defendant Beard was fined $500 on this charge and placed on probation for 18 months.
The sentences were suspended as to both defendants on the remaining charges.
About the middle of October 1963 Detective Lieutenant Magnusson, Obscenity Investigations Specialist of the Essex County Sheriff's Office, received from a citizen a copy of a publication known as Flair. He gave it to John Kallies, Postal Obscenity Specialist for the New Jersey area and with whom Magnusson collaborated in investigating obscenity matters involving the United States mail.
Since Flair Publications was indicated as located in New York City, Kallies sent the copy of Flair there. Kallies reported to Magnusson that Flair had a post office box in New York City, signed for by a James Beard. Sometime before receiving this copy of Flair, Magnusson had obtained a copy of another similar publication known as La Plume, which he described as "one of the forerunners of the sex-type clubs * * * probably one of the most active in the country." Magnusson had learned through New York Postal Inspector Dolan that a photograph of Monique Von Cleef appeared in this particular edition with a code number of 174 and the following caption:
"N.Y.C. -- Exotic Miss, 30 yrs. 36-26-36. Extremely interested in rubberwear, satin, french lingerie, discipline, etc.; Anxious to experiment. Will correspond with all. Write descriptively. Photo appreciated."
Sometime in the middle of December 1965 a letter came into the hands of Inspector Kallies, addressed to one TS (initials ours), reading as follows:
My new telephone number is 201 484-0840. The charge for consultation is $50.00.
Kallies turned this letter over to Magnusson, who ascertained on December 20 from the New Jersey Bell Telephone Company that the telephone number was registered or listed in
the name of "Marianna Von Cleef, 850 Lake Street, Newark." The premises were owned by her. After a consultation with Inspector Kallies, he called that number and spoke to defendant Von Cleef, pretending that he was TS, the addressee of the letter. He made an appointment to meet her at 850 Lake Street the next day for the purpose of receiving "an hour and a half of discipline." This call was tape-recorded and immediately transcribed.
On December 21, Magnusson, Kallies and three other police officers went to the vicinity of 850 Lake Street at the appointed hour. Magnusson entered the building. The others remained outside in their vehicle until 1:30 P.M. pursuant to a prearranged plan that they enter the premises after half an hour. After being admitted by a workman and inquiring for "Monique," Magnusson was greeted by defendant Beard, who ushered him up to the second floor where he was told to wait for Monique. He testified that after a short time defendant Von Cleef came into the room saying to him, "Hello. You are Mr. S?" and when he replied, "Yes" she said "Come with me." She led him up a stairway to the third floor, through a bedroom and into what he described as a "living room or sitting room in the front of the house." She told him to take off his coat and to make himself comfortable.
Magnusson testified that at this point Miss Von Cleef handed him a copy of a publication called Spankers Monthly, asking him if he was familiar with it, to which he said, "Not specifically this one, but others like it." Then she said, "Let me get you a drink" and added, "You can read the publication. It will excite you."
Miss Von Cleef then left the room and came back in three or four minutes with a ten-ounce glass that had about five or six ounces of scotch in it and some water. "She gave it to me and told me 'You know, this will help you to relax' and she seated herself on the couch."
A conversation followed between them about Monique's career as a professional sadist. During this conversation there was a discussion of flagellation, sadism and tranvestism.
She inquired whether he was familiar with the La Plume publication, saying that she was familiar with it and knew the owner who had put her in contact with other people. Replying that he was acquainted with La Plume, he remarked to her: "That's where I first saw your picture, in La Plume." Magnusson also testified that he asked her if she did much of this type of thing, to which she replied that she was "very knowledgable" in this area and "has clients all over the country and flies to a lot of people to take care of this business." To his statement, "You must really know your business," she responded she was "quite experienced at this."
Asked to tell her about himself, he demurred, remarking that he could not say too much because he had to be "discreet." The following then took place:
"* * * She said, 'How can I help you if you won't tell me about yourself?' I said, 'Well, I see what you mean.'
THE COURT: All right, you may continue.
A Well, I explained that I hadn't had too much experience at being the servant of a professional sadist, and she asked me, she said 'Well, when did you first start liking to be whipped? I said -- let's see -- I said that I had had an experience with a girl whom I knew and I went out with and we engaged in flagellation, and she would whip me to a point where I would be sexually aroused, and then we would consummate the normal sex act, and Miss Von Cleef at this point said, 'Well, I won't have intercourse with you.' I said, 'No. I realize that you're just going to whip me until I have an orgasm, and Miss Von Cleef said, 'Yes.'
Q Then what occurred, if anything?
A When she asked me about it, when did it first start, I also stated that you can't find too many people who know about this or who really understand it, and she acknowledged that, 'Yes, I understand that', and she made a reference that in Europe this practice is quite common and that she thoroughly understood it."
The discussion concluded with Magnusson's inquiry as to how long he could stay and her reply, "Oh, about a half hour or so, depending on how I like you, and so on." Magnusson stated that Miss Von Cleef then arose from the couch, produced a pair of women's high-heeled shoes, brought them over
and dropped them on the floor saying: "Now take off all your clothes and put these on. * * * When I come back, I want to see you on that bed in a kneeling position. * * * All your clothes off. I'm the boss."
The detective removed his tie, shirt, undershirt and shoes and socks. While defendant was out of the room, he opened a door into another room in which he observed a black object on legs having a hole in it, later identified as a torture box. As he looked out in the hall, he said he also saw Miss Von Cleef in the process of donning her costume. When she came back into the room she asked why he was not undressed and upbraided him for taking so long. She was attired, he said, in black high-heeled shoes, net stockings and a "tight-fitting rubber apparatus which would resemble a bathing suit." Saying that he was a little nervous, he proceeded to the lavatory. On the way there he observed a strap about 16 inches long on the bed.
At this point the police officers burst into the room where they found Magnusson and Monique. Magnusson informed defendant she was under arrest and a thorough search of the entire house followed.
On the second floor were found and seized the following items: About 200 boxes containing copies of Flair; a box containing 200 applications for membership in the Flair Club; 20 catalogs listing items for sale in Flair; a mailing list of over 20,000 names; 9 manila envelopes containing pictures of members of the Flair Club and a directory of its members; a Flair Enterprises checkbook; photographs, negatives, drawings and illustrations and other paraphernalia used in the publication of Flair; two filing cabinets and a file drawer containing about 2,000 names and addresses and 4,500 pieces of correspondence; a large quantity of photographs of defendant, some in various stages of nudity, in poses with other males and females; 200 photographs with accompanying stories and a roll of eight millimeter film.
The contents of a storage room on the second floor were also removed, consisting of seven cartons of unopened mail,
a large number of forms, blank invoices and catalogs for Flair, a quantity of correspondence addressed to defendant Von Cleef, a "pile" of correspondence addressed to persons with certain code numbers appearing in Flair, invoices, ...