In People v. Finkelstein (9 NY2d 342, 174 NE2d 470, 214 NYS2d 363 [1961]), the Court of Appeals rejected the defendants' arguments that a statute's failure to expressly contain a scienter element, where one is required by common law, necessitates a finding that the statute violates a defendant's right to due process under the Constitution of the United States.

Finkelstein made clear that the mere omission of an express scienter element within a statute need not be construed as an attempt by a legislature to eliminate that common-law element of the crime. Instead, the appropriate scienter element should be read into the statute.

Finkelstein instructs the lower courts that "no statute should be declared unconstitutional if by any reasonable construction it can be given a meaning in harmony with fundamental law." (Id. at 345.)

In Finkelstein, the statute at issue was former Penal Law § 1141, which provided in relevant part that "a person who sells . . . or has in his possession with intent to sell . . . any obscene . . . book . . . is guilty of a misdemeanor."

The Court indicated that the appropriate scienter element required for the crime was the possessor's awareness of the contents of the materials. By reading in this scienter element, the statute was found to be constitutional.