On appeal from Superior Court, Law Division, Hudson County.
Botter, Antell and Furman. The opinion of the court was delivered by Antell, J.A.D.
Defendant was charged on two complaints for disorderly conduct arising from the sale of obscene materials, in violation of N.J.S.A. 2C:34-2(b). It is stipulated that the proofs proposed to support the complaints would be that defendant on two separate days sold to a prosecutor's investigator tickets to view an allegedly pornographic film. From an order of the Law Division dismissing the complaints on the ground that they do not charge the offense contemplated by the statute the State appeals. The sole question presented is whether on the stipulated facts defendant was chargeable with the offense of selling obscene material.
In its entirety N.J.S.A. 2C:34-2, dealing with the sale of obscene material to a person 18 years of age or older, provides:
a. Definitions for purpose of this section:
(1) "Obscene material" means any description, narrative account, display, or depiction of sexual activity or anatomical area contained in, or consisting of, a picture or other representation, publication, sound recording, live performance, or film, which by means of posing, composition, format or animated sensual details:
(a) Depicts or describes in a patently offensive way, ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, or lewd exhibition of the genitals,
(b) Lacks serious literary, artistic, political, or scientific value, when taken as a whole, and
(c) Is a part of a work, which to the average person applying contemporary community standards, has a dominant theme taken as a whole, which appeals to the prurient interest.
b. A person who sells obscene material to a person 18 years of age or older is a disorderly person and any person charged pursuant to this section shall have the right to a trial by jury.
Nothing contained herein shall be construed to prohibit a municipality from adopting as a part of its zoning ordinances an ordinance permitting the sale of obscene material, in which event such sale shall be deemed legal.
The State argues that the foregoing legislation should be broadly read to embrace not only the physical film itself, but the exhibition thereof as well. Reliance is placed upon that portion of N.J.S.A. 2C:34-2(a)(1) which includes in its definition of obscene materials a "live performance, or film." The State reasons that since the Legislature cannot sensibly be thought to have contemplated the physical sale of live performers it could only have had in mind the sale of tickets to the performances themselves. The argument continues that ...