Defendant is charged with two counts of criminal sale of a controlled substance in the third degree, in violation of § 220.39(1) of the Penal Law, committed on 18 October 1973, and two counts of criminal possession of a controlled substance in the third degree, in violation of § 220.16(1) of the Penal Law, committed on 23 October 1973. The narcotic drug involved in each instance was heroin; heroin sale and heroin possession.
A New York Sex Crimes Lawyer said that under the revised drug laws which became effective on 1 September 1973, each of the crimes charged is classified as an A–III felony, punishable by an indeterminate term of imprisonment, the minimum period of which, for a first offender, is from one to eight and one-third years, and the maximum of which is life imprisonment.
Defendant brought on an omnibus motion earlier in the action seeking varied relief; he demanded dismissal of the indictment on constitutional grounds. Defendant has assailed the validity of §§ 65.00(1)(b), 220.16(1) and 220.39(1) of the Penal Law and § 220.10(6)(a) of the Criminal Procedure Law, as those sections apply to him, upon the grounds that they do violence to his due process and equal protection rights and that they are inconsistent with the prohibition against cruel and unusual punishment under the Federal and New York Constitutions. In the briefs for defendant and on oral argument, the claims were broadened to include a facial attack on the sections.
In addressing the task of passing upon the constitutionality of those areas of New York’s drug laws which were enacted in 1973 and which are challenged here, it is logical that defendant’s contention regarding the invalidity of §§ 220.16(1) and 220.39(1) of the Penal Law be examined first.
Here, a New York Sex Crimes Lawyer said the gist of defendant’s cruel and unusual punishment claim is that the penalty which has been legislatively imposed and must be judicially imposed, if there is a conviction, is too harsh for the alleged crimes. He contends that when, in 1973, the Legislature, in an effort to come to grips with the threat which the drug problem admittedly poses to society, incorporated such nonviolent sale and possession offenses, involving, as at bar, narcotic drugs in any quantity, regardless of the amount or value thereof, within the Class A felony scheme, and ranked them, insofar as mandatory maximum life imprisonment is concerned, with the most serious crimes known under New York Law, i.e., murder, attempted murder of a police officer, first degree kidnapping, and arson in the first degree, it exceeded its constitutional limitations and imposed a punishment which is excessive and disproportionate to the seriousness of the offenses to which it applies.
It is well settled that the Eighth Amendment’s guarantee against cruel and unusual punishments is made applicable against the States through the due process clause of the Fourteenth Amendment of the United State Constitution. Moreover, a Nassau Sex Crimes Lawyer said that since adoption of the Federal Constitution, similar proscriptions have been written into virtually every State Constitution, our own in 1846.
In a concurring opinion in the case of Furman v. Georgia, one Justice of the court spoke of the interrelated principles, which, when applied in combination, provide a means by which a court can determine whether a challenged punishment comports with the concept of human dignity which is the core of the Eighth Amendment. Formulating a cumulative test, he stated that 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 Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.
The court is of the view that, when subjected to the aforsaid test, sections 220.16(1) and 220.39(1) of the Penal Law and the penalty provisions which go with them pass Eighth Amendment muster.
Firstly, the maximum sentence of life imprisonment which defendant will be confronted with, if convicted, is neither inherently severe nor excessive as to violate the Eighth Amendment. Defendant concedes this. Nor is an indeterminate sentence inconsistent with the cruel and unusual punishments clause of that amendment. Such a sentence affords an offender the opportunity to minimize his term of imprisonment by rehabilitating himself to the point that the parole board, in the exercise of discretion, permits him to serve a part of that term outside of the prison walls. In this regard, the fact that an offender sentenced under the penalty provisions attacked here must serve the minimum term imposed, before release on parole becomes a possibility, does not give rise to a valid Eighth Amendment claim.
Secondly, the indeterminate sentence of imprisonment prescribed by statute for the A–III felonies of which defendant stands accused may not be said to have been imposed arbitrarily by the Legislature within the meaning of the constitutional prohibition which comes into play here. A Queens Sex Crimes Lawyer said for years, the evils of drug abuse and narcotics traffic have occasioned the grave concern of government. The 1973 revision of the drug laws mirrors many of society’s current concerns and attitudes about the problems inherent in and created by drug abuse. Frustration with the seeming intractibility of the drug problem is reflected in the hard line approach taken by the Legislature to the classification of drug crimes and to tougher and more restrictive sentencing options upon conviction. The very drug crime classification and sentencing provisions which defendant so stridently objects to reflect no more than a legislative awareness that earlier and less stringent measures had failed to deter illicit drug traffic and the heinous crimes that it spawns. The mere fact that, in beefing up the penalties for violation of the narcotics laws, the Legislature allowed more lenient sentences for offenses deemed by some to represent a greater evil, does not convert the penalties under fire in this case into cruel and inhuman punishments. That for other offenses, which may be considered by most, if not all, of a more grievous character, fewer punishments have been inflicted, does not make this sentence cruel. Undue leniency in one case does not transform a reasonable punishment in another case to a cruel one. The comparative gravity of criminal offenses and whether their consequences are more or less injurious are matters for a State’s determination.
Thirdly, the indeterminate sentence with its lifetime maximum for the drug sale and drug possession or heroin possession offenses with which defendant is charged cannot be fairly said to be unacceptable to modern, law-abiding society. In these populistic days, it would be difficult to find a better barometer of public sentiment than the elected Legislature which enacted the protested provisions. The current attitude of the public in this respect is perhaps best expressed by the words spoken by a Justice of New York County in sentencing a convicted narcotics violator under the former law: “Nothing is more destructive to a community’s well-being than widespread drug abuse. More young people in the city die from drug abuse than from any other single cause. Hard drugs are indeed a cancer to the community. Society has mounted a massive effort to blot out this destructive evil.”
And lastly, the penalties prescribed are not so grossly disproportionate to the crimes charged as to shock the sense of justice. The court is not dealing with nonviolent offenses here. Realistically, we deal with but one phase of a large scale, well entrenched criminal activity that springs from human greed and preys on man’s weakness, one that turns buyers into sellers, makes addicts out of newborn infants and sets addicts to mugging, thievery, prostitution, robbery and murder to support an insatiable appetite. The punishment fits the crime.
Next, defendant also challenges the constitutionality of § 65.00(1)(b) of the Penal Law. Effectively, this area of the statute provides for the sentencing of an offender to lifetime probation upon conviction for the A–III felonies of drug possession or sale (Penal Law §§ 220.16 or 220.39). This provision is intended as a bargaining lever, and was carried over from the former Penal Law and calculated to get small fry drug dealers or addicts to cooperate in the apprehension and conviction of the bigger traffickers. Defendant’s principal criticism of this section is that it transfers an undue amount of the power of punishment to the District Attorney. The court is of the opinion that this attack fails to raise a justiciable constitutional issue.
It is, in the long run, the prosecutor who must take the initiative in recommending the allowance of probation for an informant. But who in the criminal justice system is in a better position, in the first instance, to come forward with an opinion as to the usefulness and reliability of a potential informer? It’s certainly not the judiciary but the official charged with the duty to detect, prosecute and convict those who violate the law.
The claim here amounts to no more than a baseless onslaught against prosecutorial discretion. Of course, any discretionary power may be abused, and unlawful discrimination in the exercise of a prosecutor’s power would violate the equal protection guarantee of the Constitution. However, defendant makes no such claim of discrimination. Notably, in a dictum in an opinion in the case of People v. Davis, the New York Court of Appeals seemed to see salutary possibilities in the exercise of the particular discretionary prosecutorial power which defendant abhors. Besides, under the terms of the section under scrutiny, the final decision as to the propriety of lifetime probation rests with the judicial arm.
Finally, defendant’s final constitutional protest is leveled at an asserted disparity in plea bargaining rights accorded under certain provisions of the Procedure on Criminal Law. Initially, the attack is aimed at § 220.10(6)(a) of the CPL and the language of that section and subdivision which forecloses an indicted defendant of the right to plead guilty to any lesser offense than a Class A felony where the indictment charges one of the class A felonies defined in article two hundred twenty of the penal law or the attempt to commit any such class A felony.
There is no question that, in enacting § 220.10 of the CPL and its companion sections, 220.20 and 220.60, the Legislature has recognized plea negotiation as an acceptable method of disposing of criminal charges. The passage of these sections represents a prior legislative determination of the propriety and efficacy of this practice. However, there is nothing in the Federal or New York Constitutions which prevents the Legislature from reasonably restricting the right of any class of defendants to plead to reduced criminal charges. Nor is there any constitutional bar to the Legislature’s enactment of criminal laws which treat different classes of accused offenders in different ways insofar as the right to negotiate pleas to lesser crimes is concerned. The only condition which the Equal Protection clause of the Fourteenth Amendment exacts is that the distinction between classes must rest upon criteria fairly and substantially related to the object of the legislation. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
Here, the proscription against guilty pleas to offenses below the A felony grade, where the indictment charges an A-III drug crime, rationally promotes the legitimate desire of the Legislature to deter drug abuse and traffic. Thus, the differentiation of which defendant complains with regard to plea bargaining under § 220.10(6)(a) of the CPL does not offend the Equal Protection clause.
Section 180.50 does, of course, permits an inferior court judge, with the consent of the prosecutor, to reduce or convert a felony complaint to one charging a non-felony offense. Nonetheless, such section is not a plea bargaining statute. It is nothing more than a safety-valve, so to speak, designed to take care of the instance where the charge of any felony is unwarranted. Thus, defendant’s complaint boils down to nothing more than a renewed attack upon prosecutorial discretion. Absent an assertion of unlawful discrimination or abuse in the exercise of the prosecutor’s power, there is no justiciable constitutional issue in such a claim.
In sum, the second branch of defendant’s omnibus motion is denied in its entirety.
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