§ 235.00 Obscenity; definitions of terms.

The following definitions are applicable to sections 235.05, 235.10
and 235.15:

* 1. "Obscene." Any material or performance is "obscene" if (a) the
average person, applying contemporary community standards, would find
that considered as a whole, its predominant appeal is to the prurient
interest in sex, and (b) it depicts or describes in a patently offensive
manner, actual or simulated: sexual intercourse, criminal sexual act,
sexual bestiality, masturbation, sadism, masochism, excretion or lewd
exhibition of the genitals, and (c) considered as a whole, it lacks
serious literary, artistic, political, and scientific value. Predominant
appeal shall be judged with reference to ordinary adults unless it
appears from the character of the material or the circumstances of its
dissemination to be designed for children or other specially susceptible
audience.

* NB Effective until September 1, 2024

* 1. "Obscene." Any material or performance is "obscene" if (a) the
average person, applying contemporary community standards, would find
that considered as a whole, its predominant appeal is to the prurient
interest in sex, and (b) it depicts or describes in a patently offensive
manner, actual or simulated: vaginal sexual contact, a crime under the
former sections 130.50, 130.45, and 130.40 of the penal law, oral sexual
contact, anal sexual contact, sexual bestiality, masturbation, sadism,
masochism, excretion or lewd exhibition of the genitals, and (c)
considered as a whole, it lacks serious literary, artistic, political,
and scientific value. Predominant appeal shall be judged with reference
to ordinary adults unless it appears from the character of the material
or the circumstances of its dissemination to be designed for children or
other especially susceptible audience.

* NB Effective September 1, 2024

2. "Material" means anything tangible which is capable of being used
or adapted to arouse interest, whether through the medium of reading,
observation, sound or in any other manner.

3. "Performance" means any play, motion picture, dance or other
exhibition performed before an audience.

4. "Promote" means to manufacture, issue, sell, give, provide, lend,
mail, deliver, transfer, transmute, publish, distribute, circulate,
disseminate, present, exhibit or advertise, or to offer or agree to do
the same.

5. "Wholesale promote" means to manufacture, issue, sell, provide,
mail, deliver, transfer, transmute, publish, distribute, circulate,
disseminate or to offer or agree to do the same for purposes of resale.

6. "Simulated" means the explicit depiction or description of any of
the types of conduct set forth in clause (b) of subdivision one of this
section, which creates the appearance of such conduct.

7. " Criminal sexual act" means any of the types of sexual conduct
defined in subdivision two of section 130.00 provided, however, that in
any prosecution under this article the marital status of the persons
engaged in such conduct shall be irrelevant and shall not be considered.