(dissenting). At first blush, one would say what difference does nudity make? After all, there is plenty of it at the beach, certainly in motion pictures, and a great deal comes into the home on television. However, when one examines the photographs, as included in the various publications, it becomes clear that the determination should be confirmed.
One does not have to be a Potter Stewart (see, Mr. Justice Stewart concurring in Jacobellis v Ohio, 378 US 184, 197), to know pornography when you see it. Nudity is only the tip of the iceberg. This is genitals, explicit, kinky and hardcore, showing simulated sodomy and masturbation. Moreover, it is meant for general distribution and not in the privacy of one’s home or office. (See, Stanley v Georgia, 394 US 557; People v Onofre, 51 NY2d 476; cf. Walter v United States, 447 US 649.)
While the health problems of the petitioner and her mental stress due thereto are deserving of sympathy and may possibly be in mitigation, they do not excuse the conduct involved. However, they raise a question as to petitioner’s judgment. It has been made clear that the courts are not to second-guess the *502action of a police person in an emergency. (People v Benjamin, 51 NY2d 267; People v Chestnut, 51 NY2d 14; People v Reyes, 91 AD2d 935, 936.) This can only be justified on the ground that the police must exercise immediate judgment in a stressful situation, and this presupposes an understanding of what is right and what is wrong. Lack of judgment is, at the very least, indicated here.
The petitioner did not merely sign a release for these photographs, she signed four releases for pay over a period of three weeks. In other words, it was not a spur of the moment activity.
As the majority opinion points out, the Administrative Code of the City of New York § 434a-14.0 (a) contains a morals clause. In view of the approach indicated in Matter of Pell v Board of Educ. (34 NY2d 222), whereunder we must give due credit to the conclusion of the agency involved, it cannot be said that the Police Department’s determination in this matter is clearly wrong. (Sierra v McGuire, 60 NY2d 720, revg 91 AD2d 179, on dissenting opn of Alexander, J., p 185.)
The only legal issue with which we are confronted is whether an action prior to appointment may be the basis for removal. If it had occurred after the petitioner joined the police force, there would be no question that the action of the Police Commissioner should be sustained. However, it cannot be said that the Police Department is impotent in such a situation. If the State Liquor Authority can outlaw lewd and indecent “bottomless” dancing in licensed premises (Matter of Highway Tavern v McLaughlin, 105 AD2d 122 [2d Dept 1984]), which is a form of regulation not only of the licensee, but of what the public can see, the Police Department should be able to maintain some standard for the employees who must guard the public life and limb.
Asch and Bloom, JJ., concur with Sandler, J.; Kupferman, J. P., dissents in an opinion.
Determination of respondent Commissioner dated May 11, 1983, vacated and annulled, on the law, without costs and without disbursements, and the petition granted to the extent of reinstating petitioner as a New York City police officer from the effective date of her suspension from duty, and to direct respondents to pay petitioner back pay retroactive to that date. (See, Kaminsky v City of New York, 15 NY2d 500; cf. Picconi v Lowery, 36 NY2d 221; Matter of Scornavacca v Leary, 38 NY2d 583.) The matter is remitted to Special Term for a determination of the amount due petitioner.