Bischoff, Morgan and Rizzi.
[147 NJSuper Page 37] Defendants appeal their convictions, following a jury verdict, of three counts of possessing obscene materials with intent to distribute and one count of selling an obscene motion picture film. N.J.S.A. 2A:115-2. The jury
acquitted all three defendants of two counts of distribution or selling specified obscene motion pictures, magazines and newspapers.
The State's evidence at trial disclosed that Investigator Michael Sasso of the Morris County Prosecutor's office went to the "Adult Book Store" on Route 46 in Roxbury Township, New Jersey, to make some purchases at the direction of Chief Detective Sweedy. Upon arriving he was waited on by defendant Thomas Napriavnik who sold him two films, "California Erotics," "Wet Dream No. 10" and "Party Girl, Statutory Rape," and a magazine, "Girlfriends Annual." The purchase of these materials was made the subject of the first two counts of the indictment, count 1 charging Napriavnik and the other individual defendants, principals of defendant corporate proprietor, with possessing them with intent to distribute, and count 2 with distributing or selling them to Sasso.
Sasso returned to the store on the next day, November 15, 1974, and purchased from Napriavnik two magazines, "Make All Deliveries To The Rear" and "Focus on Housewives." These purchases were made the subject of counts 3 (possession) and 4 (distribution or sale) of the indictment. On November 18, 1974 he purchased from Napriavnik another film, "Coffee, Tea or Me," the subject of count 6, charging sale of the film. Later that day Sasso participated in the execution of a search warrant at the store from which 1100 magazines, 123 films and 90 "newspaper type papers" were seized. Among these were one film, "Soul Food," one magazine, "Making it Big," and three newspapers, "Pleasure," "Pussy Cat" and "Screw," possession of which with intent to distribute was charged in count 5. Sasso described all items referred to in the indictment, except one ("Party Girl, Statutory Rape," counts 1 and 2), as dealing with homosexual themes.
Further evidence disclosed that defendant Hendricks was vice-president of defendant Ed-Jon Corporation and that the
corporation had leased the premises through defendant Irving Wolbert, whose name appeared on the lease
Napriavnik was the only defense witness. He denied that Sasso ever visited the store prior to his arrest and denied all sales to him. He also denied specific knowledge of what was depicted on the films referred to in the indictment, although he admitted general knowledge as to their contents. Similarly, with respect to the magazines he stated that since they were wrapped in cellophane he lacked specific knowledge as to their contents.
The jury found all defendants guilty with respect to counts 1, 3 and 5 charging possession of the described materials with intent to distribute them and guilty with respect to count 6 charging sale of one film to Sasso. Defendants were acquitted of the counts charging distribution or sale of the materials described therein. By special verdict the jury found the following materials to be obscene: "Party Girl, Statutory Rape" (count 1), "Focus on Housewives" (count 3), and "Coffee, Tea or Me," "Soul Food," "Pleasure" and "Pussy Cat" (count 5).
Defendants' post-trial motions for acquittal or a new trial were denied. The following grounds, taken from defendants' brief, are asserted by defendants as the basis for their contention that the convictions should be vacated and the indictment dismissed:
I. Distribution of powers.
II. N.J.S.A. 2A:115-1.1 (1972) cannot be construed to
include the constitutional standards set forth in the most
recent decisions of the United States Supreme Court.
III. N.J.S.A. 2A:115-2 and N.J.S.A. 2A:115-6 are in
pari materia, must be read and construed together, and
require dismissal of the indictment against defendant-ap-
IV. Since the indictment fails to charge that ...