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State v. Wein

Decided: September 19, 1978.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HOWARD A. WEIN AND PHILLIP A. GUARINO, DEFENDANTS-APPELLANTS



On appeal from Superior Court, Law Division, Essex County.

Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D.

Conford

This is an appeal from a conviction of the defendants on two counts of an indictment containing three counts. Of the two counts, one was for conspiracy to sell and deliver obscene motion picture films at an "adult book store" conducted by them and the other for selling and distributing a specific 8mm motion picture film A trial jury acquitted the defendants on a third count, charging the selling of another allegedly obscene 8mm film. Each of the defendants was sentenced to three months on each count, to be served concurrently, with suspension of the sentences. They were each also fined $1,000 on each count.

Defendants' trial and convictions were preceded by a motion to dismiss the indictment on a number of grounds, all of which were denied. Our discussion of the grounds of appeal argued will include those advanced on the motion to dismiss.

We conclude that all the grounds of appeal, save one, are without merit. For reasons to be stated, we find that there is substance in defendants' contention that the count of the indictment for the substantive offense of sale of a film is defective for failure to charge scienter , and that for that reason the motion to dismiss the indictment as to that count should have been granted. We find the count of the indictment and the resulting conviction relating to the alleged conspiracy to be unexceptionable in all respects.

Defendants' first point is that N.J.S.A. 2A:115-1.1, as most recently amended by L. 1971, c. 449 (effective February 16, 1972), is unconstitutional. The argument seeks to deprecate the decision in State v. DeSantis , 65 N.J. 462

(1974), to the effect that the cited statute should be read as containing the criteria for unprotected obscenity enunciated by the United States Supreme Court in Miller v. California , 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). The criticism is based upon the assertion that the DeSantis determination was improperly made by the Supreme Court because the 1971 statute was not the one under which the defendant in DeSantis was convicted. We reject the argument.

A considered determination by our Supreme Court, even though dictum , commands respect by this intermediate appellate court. Other parts of this court have already ruled adversely to defendants as to this very contention, and we follow them as a matter of stare decisis. State v. DePiano , 150 N.J. Super. 309, 313-315 (1977); State v. Napriavnik , 147 N.J. Super. 36, 40 (1977).

Defendants' third point is that the statute violates Article I, paragraph 6 of the New Jersey Constitution -- the free speech and free press provision thereof. We conclude that it is implicit in DeSantis that the validation of the statute under the Federal Constitution adjudicated in that case applies also to the objections based upon the corresponding State Constitution provision.

Defendants' fifth point is that the decision in DeSantis , if applied indefinitely thereafter without an intervening confirmatory amendment of the statute, violates the doctrine of separation of powers. It is contended that the intent of DeSantis was only to provide a "stop-gap" remedy pending amendatory legislation. We do not accept the argument. The intent of the Supreme Court in DeSantis was that its construction of the obscenity act should apply until there was different or contrary legislation, but without limitation as to the time within which such legislation might be adopted. We may fairly interpret the legislative inactivity in that regard since DeSantis as indicating satisfaction with the Supreme Court's decision therein, consistent with other available evidence of the legislative intent for the broadest prohibition

of dissemination of obscene materials consistent with the views of the United States Supreme Court as to the limits of protected expression. See DeSantis , 65 N.J. at 466. Moreover, defendants' contention ...


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