New York Penal Law § 235.06: Obscenity in the Second Degree

New York Penal Law § 235.06 defines the offense of Obscenity in the Second Degree. This offense involves the distribution, promotion, or presentation of obscene material to others, including minors. Under this statute, a person is guilty of Obscenity in the Second Degree when they knowingly:

• Promote, sell, or distribute obscene material; or
• Possess obscene material with the intent to promote, sell, or distribute it.

"Obscene material" is defined as any material that:

• Appeals to prurient interests;
• Depicts or describes sexual conduct in a patently offensive manner; and
• Lacks serious literary, artistic, political, or scientific value.

It is important to note that this offense is different from disseminating indecent material to minors, which involves the dissemination of material that is harmful to minors. Obscenity, on the other hand, involves material that is considered offensive to the average person's standards of decency.

People v. Farrell, 146 A.D.3d 695 (2d Dep't 2017). In this case, the defendant was convicted of Obscenity in the Second Degree after he was found to be in possession of a video containing footage of adults engaging in sexual conduct with a child. The defendant argued that the video was not obscene because it had scientific value as evidence in a child custody proceeding. However, the court held that the video lacked serious scientific value because it was not created for scientific purposes and was not part of any scientific study or research. As a result, the defendant's conviction for Obscenity in the Second Degree was upheld.

People v. Phillips, 68 A.D.3d 535 (1st Dep't 2009). In this case, the defendant was convicted of Obscenity in the Second Degree after he distributed DVDs containing explicit sexual material to an undercover police officer. The defendant argued that the material was not obscene because it had artistic value. However, the court held that the material lacked serious artistic value because it did not have any cultural, literary, or other artistic significance. As a result, the defendant's conviction for Obscenity in the Second Degree was upheld.

1. Obscenity in the third degree. Section 235.05
2. Obscenity in the first degree. Section 235.07
3. Disseminating indecent material to minors in the second degree. Section 235.21
4. Disseminating indecent material to minors in the first degree. Section 235.22

New York Penal Law Section 235.06, Obscenity in the Second Degree, is a class E felony. The sentence for this offense can include a term of imprisonment of up to 4 years, a fine of up to $5,000, or both.

A person is guilty of obscenity in the second degree when he commits the crime of obscenity in the third degree as defined in subdivisions one and two of section 235.05 of this chapter and has been previously convicted of obscenity in the third degree. Obscenity in the second degree is a class E felony.

If you have been charged with Obscenity in the Second Degree or any other criminal offense in New York, it is essential to consult with an experienced criminal defense attorney who can protect your rights and help you navigate the legal system. Contact Stephen Bilkis & Associates at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, Nassau County, Queens, Bronx, Brooklyn, Long Island, Staten Island, Suffolk County, and Westchester County.