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PEOPLE v. NITKE

45 A.D.2d 543 (1974)

The People of the State of New York, Respondent, v. Herbert Nitke, Appellant. (Appeal No. 1.) The People of the State of New York, Respondent, v. Linn Smeal, Appellant. (Appeal No. 2.) The People of the State of New York, Respondent, v. Yorkview Theatre Corporation, Doing Business Under the Name of Monroe Theatre, Appellant. (Appeal No. 3.)

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

October 24, 1974.

Attorney(s) appearing for the Case

Thomas G. Presutti and John M. Zucker for appellants.

Jack B. Lazarus, District Attorney (Edward J. Spires of counsel), for respondent.

MARSH, P. J., CARDAMONE, SIMONS, GOLDMAN and DEL VECCHIO, JJ., concur.

Per Curiam.

A new trial should be had as a matter of law. The crucial question on this appeal is whether the Trial Justice committed reversible error by instructing the jury to apply the community standards of Monroe County in determining whether the films involved were "obscene" under section 235.00 of the Penal Law. The defendants were tried and convicted after the United States Supreme Court altered the Federal...

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