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The issue is whether the court erred


A New York Drug Possession Lawyer said that, defendant, a graduate student and teacher at Penn State University, was convicted by the court, without a jury, of criminal sale of a controlled substance in the first degree, a class A felony, and was sentenced to a minimum period of imprisonment of 15 years to life. It is not disputed that on January 4, 1975 the defendant, while under police surveillance, sold a substantial quantity of cocaine to a police informant.

A New York Cocaine Possession Lawyer said that, the informant who made the purchase of cocaine upon which defendant’s conviction is based testified that he had known defendant for about two years before the transaction of January 4, 1975; that he had visited defendant’s Pennsylvania apartment on several occasions; and that he had made prior drug purchases from defendant. He also testified that on December 4, 1974, the day before he was arrested in Steuben County for possession of amphetamines, he purchased 1,000 pills which he believed to be amphetamines, a gram of cocaine and one or two grams of PCP from defendant in Pennsylvania. While it later developed that these pills were not a controlled substance, he asserted that defendant told him that they were ‘black beauties’ and he paid defendant between $220 and $240 for the pills.

A New York Criminal Lawyer said that, the informant admitted that over a period of time he had used amphetamines, sedatives, hallucinogens, marijuana and heroin, and that he had sold drugs to others. He had a prior Chemung County conviction for felony possession of marijuana which was pending on appeal. On December 5, 1974 he was arrested for felony possession of amphetamines and shortly thereafter he expressed a desire to work with the state police as an informant. On December 20, 1974 he discussed with his attorney his possible informant’s role and its effect not only upon the charge with which he was then confronted but also upon the prior Chemung County conviction.

While it is conceded that the state police officers who arrested the informant on the amphetamine charge learned from a laboratory report on December 23, 1974 that he did not in fact possess a controlled substance, they did not so advise him until he had completed his work as an informant in this case. It is further conceded that the informant did not communicate to the state police his desire to work as an informant until December 24, 1974. He was thereafter released from jail to commence making drug purchases under police supervision.

In addition to police witnesses, and two others who were called to prove that the crime was committed in New York State, one an habitual drug user who had known defendant for four years and had lived with him for two years immediately prior to the date of the crime, also testified on behalf of the People. She said that she knew the informant had seen him in defendant’s apartment on prior occasions, had observed drugs in the defendant’s apartment on five occasions in the fall of 1974, had watched defendant weigh drugs in his ‘laboratory’, may have seen him selling drugs to others, and that the vial of cocaine she had in her possession at the time of defendant’s arrest was given to her by defendant. She further testified that in the fall of 1974, while she was living with defendant, she used cocaine and marijuana every day; LSD when it was available; speed once or twice a week; and Quaaludes two or three times a week.

A New York Drug Possession Lawyer said that, the defendant testified that he lived with for three years; that he never saw her use any drugs, except marijuana; and that he didn’t know that she was using so many drugs until he heard her testify. While he admitted the cocaine transaction for which he was charged here, he denied any prior drug sales to informant or anyone else. He stated that he had smoked marijuana; that he had done so in his apartment with the informant; and that he had used LSD twice and cocaine on five or six occasions. He acknowledged identifying pills for the informant as ‘black beauties’ but denied that he sold them to him.

The issue in case is whether the court erred in convicting defendant of criminal sale of a controlled substance in the first degree, a class A felony.

With that drug-related background we proceed to the other relevant facts which gave rise to this charge. Upon his release from jail to work as an informant, and between December 25, 1974 and January 4, 1975, the informant made seven long distance ‘collect’ calls to the defendant. Three of such calls were made on January 4, 1975, the date of the crime. In the same time frame the defendant telephoned him at least once. All of these calls essentially related to his professed desire to purchase a large amount of drugs from defendant. Though the defendant at first told him that nothing was available that would be worthwhile, in a later conversation defendant told him that he would check into getting cocaine for him. Finally, defendant agreed to deliver two ounces of cocaine to him or $1,800 an ounce. The price was later set at $1,900 an ounce in consideration of defendant’s agreement to deliver the cocaine to Lawrenceville, Pennsylvania, located immediately south of the New York State border. The defendant would not engage in a drug transaction in New York because, according to his testimony, New York drug laws are ‘outrageous’.

Indeed, it appears that when the cocaine was actually delivered to him in New York State, the defendant believed that the transaction was taking place in Pennsylvania. The record demonstrates that the state police and the informant arranged for this drug transaction to occur at a location in New York State which, by its physical characteristics, appeared to be Pennsylvania.

The defendant was ingenious in devising a method of delivery of the cocaine to the informant and took precautionary measures not generally employed by one unskilled in drug trafficking. He arranged to have driven an automobile which contained the cocaine, and he drove a separate vehicle, carrying on his person only a small sample of his wares. He also carried with him under his shirt, a plastic bag containing a non-narcotic substance which appeared to be cocaine because he was concerned about a possible ‘rip-off’.

While the defendant raises several issues on this appeal, only four are worthy of review. He first contends that the court erred in denying his motion under CPL 210.40 to dismiss the indictment in the interests of justice. Criminal Procedure Law 210.40 provides that an indictment may be dismissed in furtherance of justice when ‘such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice’. Thus the question of whether an indictment should be dismissed in furtherance of justice is addressed to the discretion of the trial judge. While that discretion is clearly not absolute, the issue on appeal is whether the court abused or improvidently exercised its discretionary authority.

While the efficacy of CPL 210.40 in its present form has recently been the subject of concern in the Court of Appeals, to the extent that it continues to permit the exercise of judicial discretion, its application ‘should be narrowly confined, (and) rarely exercised’. Moreover, our Legislature has determined that the nature of defendant’s crime represents a grave threat to society.

On this record, in our view, the trial court properly exercised its discretion in denying the motion. While we recognize that the defendant is a student, undergraduate instructor and doctoral candidate, facts, incidentally, which should not militate in his favor in the context of this case, the trial testimony clearly established that the defendant was not only experienced in the drug culture, but that he spent part of his time in the sale of narcotics. The evidence of his guilt is overwhelming; his criminal activity reveals careful fore-thought and execution; and the record reasonably supports a conclusion that his motivation for the crime was personal profit. Additionally, viewed even from this distance, we find that his trial testimony was not credible.

Without reciting the trial court’s findings, it is sufficient to note that the record amply supports its determination that the defendant was predisposed to commit the offense for which he was charged. While it is clear that defendant did not intent to enter New York to sell cocaine but intended only to sell it in Pennsylvania, the fact that he was lured into New York is of no avail to him as regards this statutory defense.

Indeed, recognizing that the defendant should not succeed in his entrapment defense, the dissent focuses on the ‘reprehensible’ nature of the police conduct as a denial of ‘due process’, all the while conceding that ‘the defendant in this case committed an act for which he has been adjudged guilty’. In any event, defendant’s due process argument is founded upon the improper conduct of the police in their relationship with the bribery informant. Due process considerations ‘come into play only when the government activity in question violates some protected right of the Defendant’. It is not urged by the defendant that any such protected right was violated here.

While it is true that the police are charged with full knowledge of the actions of their informant, the conduct of neither the police nor the informant is so outrageous as to “(shock) the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment’. Finally, defendant contends that the mandatory sentence provided for in Penal Law, § 70.00 constitute cruel and unusual punishment as applied to him. The minimum period of imprisonment for a class A–I felony conviction is not less than 15 years (Penal Law, § 70.00, subd. 3, par. (a)(i)) and the maximum term is life imprisonment (Penal Law, § 70.00, subd. 2, par. (a)).

In connection with this argument we note that the Court of Appeals, in passing upon the former mandatory sentence provisions for a class A felony in Penal Law, § 70.00, ruled that ‘regardless of its severity, a sentence of imprisonment which is within the limits of a valid statute ordinarily is not cruel and unusual punishment in the constitutional sense’. Subsequent to the 1973 amendments to Penal Law, § 70.00, which amendments subdivided class A felonies into A–I, A–II and A–III classifications and provided separate minimum periods of imprisonment for each classification, the Court of Appeals determined that the mandated minimum and maximum periods of imprisonment for class A–II and class A–III felonies do not constitute cruel and unusual punishment and are not grossly disproportionate punishments. Beyond that, however, defendant nonetheless asserts that his is a ‘rare case (and that) on its particular facts the statutes have been unconstitutionally applied’ to him. In the circumstances of this case, we find no merit to defendant’s argument. Both the criminal defendant and his offense ‘fit the statutory definition of the offender class, and are also encompassed by legitimate penological purposes as envisioned by the Legislature’.

Accordingly, the court held that the judgment of conviction should be affirmed.

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