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Defendant presented four alibi witnesses

In this Criminal case, Defendant stands convicted after a jury trial of Robbery in the First Degree, Robbery in the Second Degree, Attempted Robbery in the First Degree and Attempted Robbery in the Second Degree.

A Queens County Criminal lawyer said that in January1986, defense counsel moved pursuant to CPL § 460.50 for a stay of the execution of the sentence pending the determination of an appeal of the instant conviction. The court imposed the minimum sentence authorized by law of an indeterminate term of imprisonment of no less than two and no more than six years for the top count of the indictment and stayed the execution thereof upon defendant’s application.

Defendant’s conviction was affirmed by the Appellate Division, Second Department, and the case was remanded to the trial court for execution of the sentence. The matter was adjourned with the consent of the People and the court in order to allow defendant to explore whether any alternative was possible other than the execution of sentence of incarceration imposed by the court.

Defendant moves pursuant to CPL § 440.20 to have the sentencing provisions of Penal Law § 70.00 declared unconstitutional as applied to him. The People take no position with respect to the motion but request, should the court grant defendant’s motion, that a sentence of probation be conditioned upon defendant staying out of trouble and not being re-arrested or violating probation in any way. The Eighth Amendment prohibition against cruel and unusual punishment has been incorporated into the constitution of almost every American jurisdiction through the Fourteenth Amendment.

The court recognizes that the Legislature has latitude in determining which ills of society require criminal sanctions, and in imposing, as it reasonably views them, punishments, even mandatory ones, appropriate to each.

In a case, analyzing the Eighth Amendment, the Court concluded that the cruel and unusual punishment clause covers disproportionate penalties as well as those objectionable in kind.

However, notwithstanding the power of the Legislature to make laws, it is inherent in the judicial branch of government to determine whether the Legislature has contravened a constitutional prohibition. The court in Weems said, in that respect and for that purpose “the legislative power is brought to the judgment of a power superior to it for the instant”.

In another case, the court enunciated the test under which a court may determine that a punishment is “cruel and unusual” as follows: “If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Eighth Amendment.”

Although ordinarily reserved for the imposition of capital punishment or barbaric and inhumane treatment of prisoners, the prohibition against cruel and unusual punishment has been found by the Court of Appeals to be applicable to New York’s Drugs Laws.

Several lower courts have reasoned that this dictum gives them the authority to impose probationary sentences in the face of mandatory imprisonment requirements in drug crimes.

Rejecting a subjective analysis, the Court of Appeals set forth objective standards to determine whether punishments are constitutionally disproportionate. It held that “the gravity of the offense is obviously key as is the gravity of the danger which the offender poses to society. Given grave offenses committed or committable by dangerous offenders, the penological purposes of the sentencing statutes, whether they be the rehabilitation or isolation of offenders or the deterrence of potential offenders, will be decisive”.

There appears to be no reported criminal case that has applied the cruel and unusual punishment analysis or considered the disproportionality of the mandatory imprisonment statute to the crime of Robbery in the First Degree in a particular case. However, it is clear that the highest courts in this country and state have not precluded a trial court from finding a particular punishment cruel and unusual in any given case.

The criminal court is faced here with a defendant who has been convicted of crimes involving the robbery of a jacket and a small amount of currency. Defendant was identified from a photograph by the two complainants who were alleged to have seen him for a period of five to ten minutes during the commission of the crime. Defendant presented four alibi witnesses who were apparently disbelieved by the jury.

The Legislature, in requiring mandatory incarceration for a conviction of Robbery in the First Degree, recognized the gravity of the offense and the need for punishment. However, under the unique set of circumstances as they present themselves in the instant case, the court must assess the proportionality of the punishment to the crime and to this particular defendant.

Although a grave offense has been committed, fortunately the loss to complainants was minimal and no one was harmed. Therefore, the punitive aspect of incarceration is not as compelling here as in a case where injury was inflicted or the loss was great.

A second consideration for the court is the character of the offender and the gravity of the threat he poses to society.

Defendant is presently completing his sophomore year. Subsequent to his conviction he graduated from high school and, as asserted by counsel, became a member of a group in the said school.” He presently participates in a choral group which performs around the country under the auspices of the college.

Annexed to the moving papers are letters from fellow members of the Queens Church of Christ, including a police officer, minister and the couple with whom he resides when in New York who attest to defendant’s fine character, benevolence and potential to remain a productive member of society. It is most likely that defendant poses no further threat to the public is strong.

Upon granting a stay of execution of his sentence pending appeal, this court imposed various conditions. Defendant conducted himself in conformance thereto. Under the circumstances, the purposes of punishment–deterrence, isolation, retribution and rehabilitation–will not best be served by incarceration in the instant case.

There is every indication that defendant is well on the road to rehabilitation and will complete his education in religious studies and business administration.

Mandatory incarceration will not deter further criminal behavior because defendant has resolved to conduct himself within societal norms. Isolation will not serve to protect the public because defendant has obviously taken control of his life and has struggled to conform and has successfully improved his stature in the community.

Therefore, in the instant matter, the courts find that the sentencing statute’s purpose of retribution and deterrence should be balanced and yield to the sentencing goal of rehabilitation of the individual. To apply a statutorily mandated term of imprisonment under these circumstances would constitute cruel and unusual punishment.

Accordingly, defendant’s motion to set aside his sentence as a violation of his constitutional right against cruel and unusual punishment is granted without opposition.

Criminal cases should be handled by lawyers who are diligent and aware of the needs of the accused client. This is so because these kinds of cases involve imposition of penalties such as imprisonment. Here in Stephen Bilkis and Associates, we have Queens County Criminal attorneys who will defend you in your court cases, we also have Queens County Drug lawyers who will inform you of your rights if you are a victim of a frame-up. Contact us now and be advised.

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