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NY Penal Law Obscenity Crimes

By Spodek Law Group | July 11, 2016
(Last Updated On: July 26, 2023)

Last Updated on: 26th July 2023, 08:56 pm

If you’ve been keeping up with our ongoing series of posts, then you know the drill. We’re going to look, in this post, at obscenity and related charges. In case you haven’t, though, we’ve been taking a look at some of the various charges on the books in the state of New York in relation the penal code. We’ve looked at violent offenses, racketeering, even recently added charges like cyber crimes and the like. We’ve done so with the earnest belief that when you take the often confusing mountain of legalese that you’ll come across when looking at the law and then going ahead to break it down into simple chunks that not only make a lot of sense but also make it easy for you to mount a successful legal defense when it comes to reducing or even dismissing your charges outright. So with that said, let’s go ahead and get started.
Obscenity definitions of terms
First, some definitions. By obscene we mean that the average person applying current standards would think that the main appeal of a material or performance has a prurient interest in sex, and that it’s offensive in that it simulates sex, bestiality, sadism, excretion, or something else similarly, and also lacks artistic, literary, and scientific/political value. Appeal will be made by ordinary adults.
By material we mean something tangible that’s used or adapted to arouse interest.
Performance is a play, movie, dance, or other kind of exhibition that’s performed in front of an audience.
Promote basically means the manufacture, sale, or some other way of transmitting the same.
Wholesale promote basically means to manufacture, sell, provide, or otherwise transmit something to be resold.
Simulated means the depiction or description of conduct we’ve already talked about.
Criminal sexual act is any type of sexual conduct that is of a criminal nature, as you might expect.
Obscenity in the third degree
You’re guilty of this crime when you know the content and character of material and promote or possess obscene material, or produce or present an obscene performance. Obscenity in the third degree is a class A misdemeanor.
Obscenity in the second degree
For the second degree charge, you’re guilty when you commit the third degree version of this crime and have previously been convicted of the same. Obscenity in the second degree is considered to be a class E felony.
Obscenity in the first degree
This is just when you promote or possess with the intent to promote any obscene material. Obscenity in the first degree is a class D felony.
Obscenity presumptions
There are a couple of presumptions involved with this charge. Among them, anyone who promotes obscene material or possesses same with the intention of promoting it is presumed to do so while knowing what it is. Also, someone who possesses six or more similar obscene articles is presumed to possess them with the intention of promoting them. These provisions don’t apply to public libraries and the like, though.
Obscenity or disseminating indecent material to minors in the second degree; defense.
In some kind of prosecution for the crime of obscenity or disseminating this kind of material to minors, it’s considered an affirmative defense that the people who were given this material were in the context of being in some kind of scientific, educational, or other similar type of place where it’s authorized for these things to be viewed. It’s also an affirmative defense that the person who was charged was a projectionist, stage employee, or other type of person who didn’t have a managerial role and also didn’t have any kind of financial connection to the promotion of these materials.
As you can see, that wasn’t too bad at all. In fact, once you break down these things into more manageable chunks, as we said before, everything becomes relatively simple to understand, which of course is going to make your potential legal defense for any charges that much easier to mount. But the thing is, you can know the law forward and backward and that’s not going to do you one bit of good if you don’t have the right legal assistance to fight by your side.

In New York, obscenity is classified into three crimes of varying degrees, each involving the promotion, possession, or distribution of obscene material or performances. Obscenity in the third degree is a class A misdemeanor, the second degree is a class E felony, and the first degree is a class D felony. Certain presumptions and defenses exist, such as the allowance of obscene material in educational or scientific contexts. Knowing these regulations is essential, but proper legal assistance is crucial for a strong defense in court.

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