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Defendant Takes Issue of Reclassification of Drug Offense to a Felony


A man was charged in an indictment of two counts of criminal heroin possession and sale. The first count was due to drug possession and sale committed on October 19, 1973 and the second count was due to heroin possession and sale committed on October 23, 1973.

On September 1, 1973, the legislature of New York passed a law which classified criminal heroin possession and sale as a A-III felony. Being classified as A-III felony, a conviction would be punishable with an indeterminate prison sentence of a minimum of one to eight years (for first time offenders) and a maximum of life imprisonment.

A New York Criminal Lawyer said the accused here seeks a dismissal of the information and the indictment against him on the grounds that the indictment for criminal heroin sale and possession violates his rights to due process, equal protection, and the right against cruel and unusual punishment.

The man claims that the amount of drugs found on him on October 19, 1973 was only .006 and .007 on October 23, 1973. He claims that his sale only yielded him a profit of $60.00. He claims that he should not be indicted for a criminal heroin possession and sale alongside career criminal drug dealers. He also claims that his sale of such small amounts of heroin cannot be considered as grave or violent as the other A-III felonies as criminal heroin possession and sale is not a crime involving violence or danger of violence against persons or property.

He also claims that this classifying of small-scale criminal heroin possession and sale as an A-III felony is unfair and cruel because he stands to be sentenced to a minimum of 1-8 years and a maximum of life imprisonment; A New York Criminal Lawyer said when a conviction for other more violent crimes such as second degree arson, first degree burglary, criminal mischief, kidnapping, manslaughter or first degree rape, robbery or sodomy have a maximum sentence of only twenty-five years’ imprisonment.

The accused here bewails that if he is convicted under the indictment for the criminal charge of criminal heroin possession and sale, he stands to be convicted of a minimum sentence of one to eight years behind prison bars and, if admitted into parole or probation, he will be under parole or probation for his whole lifetime. This is the harsh consequence of the statute that re-classified the crime of criminal heroin possession and sale to an A-III felony. Moreover, the law that provides for the reclassification of the crime as an A-III will also prevent him from being admitted into probation unless the District Attorney gives him a favorable recommendation. This he says gives too much power to the District Attorney.

The accused here also points to another consequence of the reclassification of the crime of criminal heroin possession and sale as an A-III felony: his right to enter into a plea bargain is restricted.

The only question before the Court is whether or not the indictment should be dismissed.

The Court held that a maximum sentence of life imprisonment is not inherently harsh or disproportionate. The maximum sentence of life imprisonment is part of an indeterminate sentence. The indeterminate sentence scheme was adapted so that when a convicted felon serves the minimum, he can serve out a part of his prison sentence outside prison walls.

The indeterminate sentence imposed on A-III felonies was not arbitrarily imposed by the legislature. The legislature is a body composed of duly elected representatives of the people. They have determined that the increasing incidence of drug use, drug addiction and the increase in the incidence of drug dealing and drug sales was a threat to the fabric of society. Although the very sale itself may not include violence, drug addiction creates an insatiable appetite in the addict that he is willing to resort to mugging, theft, prostitution, and robbery just so he can support his drug habit.

On the question of the possibility of a lifetime of probation, the Court held that the recommendation of the District Attorney for a felon convicted of an A-III crime can only be given if the felon is providing material assistance in the investigation, apprehension or prosecution of other crimes. The law does not give the discretion solely to the District Attorney because the administrative judge must also concur with the District Attorney’s recommendation. This serves the greater end of justice because it gives the District Attorney a means by which to apprehend other drug dealers and traffickers.

On the question of the restriction of his right to plea bargain, the Court held that while plea bargaining is an important part of criminal justice the Constitution does not guarantee the accused the right to negotiate a plea. No accused has an absolute right for his offer to plead to a lesser offense to be accepted by the District Attorney or the judge. Negotiating a plea is a device by which criminal charges may be disposed of but there is nothing that prevents the legislature from restricting a class of defendants from pleading to reduced criminal charges.

The Court denied the motion to dismiss.

Are you like the accused here who is charged with criminal heroin possession and sale? Are you terrified of being convicted and serving a maximum sentence of life imprisonment? You need to speak with a New York Drug Crime attorney who can represent you. A New York Drug Crime lawyer can give you advice on the viability of a plea bargain: you might be able to plead to a lesser offense in exchange for assisting or testifying in ongoing investigations. Whether you have been charged with drug offense, sex crimes or theft, at Stephen Bilkis and Associates, their legal team is willing and available to meet with you and listen to you. Call Stephen Bilkis and Associates today and set up a meeting with any of their New York City Drug Crime attorneys and be informed of all your options.

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