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  5. 32 N.Y.2d 17 (1973)
 

PEOPLE v. KIRKPATRICK

32 N.Y.2d 17 (1973)

The People of the State of New York, Respondent, v. Charles Kirkpatrick and Peter Dargis, Appellants, and Peter Martin et al., Defendants.

Court of Appeals of the State of New York.

Decided March 15, 1973.

Attorney(s) appearing for the Case

Robert P. Levine for appellants.

Frank S. Hogan, District Attorney (Harold Roland Shapiro of counsel), for respondent.

Horace S. Manges and Marshall C. Berger for Association of American Publishers, Inc., amicus curiae.

Paul G. Chevigny for New York Civil Liberties Union, amicus curiae.

Judges BURKE, JASEN and GABRIELLI concur with Judge BREITEL; Chief Judge FULD dissents and votes to reverse in a separate opinion in which Judges JONES and WACHTLER concur.

BREITEL, J.

A so-called adult comic magazine called Zap No. 4 has been found obscene and for its sale two booksellers in separate cases tried together have been convicted of a violation of section 235.05 of the Penal Law. Each of the defendants was fined $500 and if the fine was not paid to serve 90 days in jail. The fines were paid. The Appellate Term affirmed, and defendants appeal by leave of an Associate...

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