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Sentence is questioned by defendant


The defendant, a graduate student and teacher was convicted by the court without a jury. The conviction was 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.

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

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 marijuana possession which was pending on appeal. He was arrested for amphetamine possession and shortly thereafter he expressed a desire to work with the state police as an informant. 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 that the informant did not in fact possess a controlled substance, they did not so advise him until he had completed his work as an informant in the current 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 drug crime was committed in New York State, one habitual drug user who had known the defendant for four years and had lived with him for two years immediately prior to the date of the drug crime, also testified on behalf of the complainant. She said that she knew the informant had seen him in the defendant’s apartment on prior occasions, had observed drugs in the defendant’s apartment on five occasions, had watched the 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 the arrest was given to her by the defendant. She further testified that in the fall of 1974, while she was living with the defendant, she used cocaine and marijuana everyday; LSD when it was available; speed once or twice a week; and Quaaludes two or three times a week. She had no guns when arrested.

The defendant testified that he lived with the habitual drug user 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, he denied any prior drug sales to the 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 the informant.

Upon his release from jail to work as an informant, he made seven long distance collect calls to the defendant. Three of such calls were made on the date of the drug crime. In the same time frame the defendant telephoned the informant at least once. All of these calls essentially related to the informant’s professed desire to purchase a large amount of drugs from the defendant. The defendant agreed to deliver two ounces of cocaine to the informant for $1,800 an ounce. The price was later set at $1,900 an ounce in consideration of the 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 the informant 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 the 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 the habitual drug user drive 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.

By prearrangement, the defendant and the informant met in Lindley, New York. The defendant gave the informant a sample of the cocaine which he took to a state policeman. The state policeman gave him $1,900 which was to be delivered to the defendant with instructions to the informant to tell the defendant that the other half would be paid when the first half of the cocaine was examined. It was upon delivery of the $1,900 to the defendant that the informant was first told that the narcotics were with the habitual drug user in another car across the street. The defendant together with the informant in the car drove to a point alongside the car operated by the habitual drug user, and she handed the cocaine through the respective car windows. Thereafter both the defendant and the habitual drug user were placed under arrest.

While the defendant raises several issues, only four are worthy of review. He first contends that the court erred in denying his motion to dismiss the indictment in the interests of justice. Criminal Procedure Law 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.

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 the 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 drug crime was personal profit. Additionally, viewed even from a distance, the trial testimony was not credible.

The defendant next urges that the evidence substantiates his defense of entrapment. The court considered the defendant’s argument in conjunction with his further claim that he was denied due process of law.

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 the 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 to his statutory defense.

The defense of entrapment is not available when the defendant is predisposed to commit the drug crime, a defense otherwise labeled might well be appropriate when the police over-involvement in crime reaches a demonstrable level of outrageousness.

One may reasonably find from the record that the defendant’s role as a seller of narcotics could have its impact on New York citizens. In acknowledging that the defendant had not before sold drugs in New York State, the court may not conclude that the sale of his wares in Pennsylvania foreclosed their later distribution and use in New York. While the court does not encourage New York police to solicit peculiarly foreign sellers of narcotics to set up shop in any state, the court will not foreclose their obvious legitimate interest in the flow of contraband adjacent to the borders.

Although the court deplore, if true, any unnecessary physical restraint or abuse of the informant by the police, and finds equally reprehensible the failure of law enforcement officials to advise the informant of the negative chemical analysis in his own case, neither of these events bore directly upon the informant’s original decision to work for the police. It may be that he would have changed his mind had he known the test results, but that is not what took place. Moreover, there is nothing in the record which shows any correlation between the alleged physical abuse and the informant’s cooperation. Indeed, the informant testified that he did not become an informant because of any threat of physical harm.

Finally, the defendant contends that the mandatory sentence provided for in Penal Law constitutes 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 and the maximum term is life imprisonment. Unless it’s a sex crime or the crime of robbery.

In the circumstances of the case, there is no merit to the defendant’s argument. Both the defendant and his offense fit the statutory definition of the offender class are also encompassed by legitimate penological purposes as envisioned by the Legislature. The judgment of conviction is affirmed.

Law enforcers encourage past law offenders to participate in convicting those who continue to violate the law. If you think that the chance you embraced to correct your previous wrongdoings has put you in danger, ask the help of the NYC Drug Lawyers and New York Criminal Attorneys from Stephen Bilkis and Associates.

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