Opinion
June 22, 1990
Appeal from the Niagara County Court, DiFlorio, J.
Present — Doerr, J.P., Boomer, Green, Pine and Lowery, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendants appeal from a judgment convicting them of one count of obscenity in the third degree, stemming from their sale of a videotape entitled "Sex Wish" to a police officer. Defendants were charged in the indictment with illegally promoting material depicting or describing "sexual intercourse, sodomy, masturbation and/or lewd exhibition of genitals." However, the court charged the jury with respect to the entire definition of obscenity set forth in Penal Law § 235.00 (1), which also includes sexual bestiality, sadism, masochism and excretion. That was error. The People were limited to trying defendants on the charges in the indictment (see, People v Grega, 72 N.Y.2d 489, 496). Preservation is not required because defendants' constitutional right to be convicted only of those crimes and upon those theories charged in an indictment is nonwaivable (People v. Rubin, 101 A.D.2d 71, 77). This error cannot be considered harmless because the videotape depicted sadistic sexual behavior including bondage, torture and execution (cf., People v. Grega, supra, at 497). We cannot say that there is no reasonable possibility that the error might have contributed to defendants' conviction (see, People v. Crimmins, 36 N.Y.2d 230, 237).