People v. Abram

Citation178 Misc.2d 120,680 N.Y.S.2d 414
Parties, 1998 N.Y. Slip Op. 98,507 The PEOPLE of the State of New York, Plaintiff, v. Michael T. ABRAM, Defendant. The PEOPLE of the State of New York, Plaintiff, v. Derick A. SULLIVAN, Defendant. The PEOPLE of the State of New York, Plaintiff, v. Mark A. JOLLY, Defendant.
Decision Date09 September 1998
CourtNew York City Court

James T. King, District Attorney of Jefferson County, Watertown (Mark Moody, of counsel), for plaintiff.

David Renzi, Public Defender of Jefferson County, Watertown (David Derrico, of counsel), for defendants.

JAMES C. HARBERSON, Judge.

The defendants are members of the military under the rank of First Sergeant charged with driving while intoxicated. They were not court marshalled but have had administrative sanctions imposed on them based on these charges by Army authorities: a General Letter of Reprimand barring them from promotion, reenlistment and receiving an honorable discharge. Two defendants have been reduced in rank and none of the defendants will receive vacation time. They will be prohibited from operating a motor vehicle on base and they are required to attend a substance abuse course. They are prohibited from leaving the Army until their enlistment terms end under threat of court martial for A.W.O.L.

The defense argues that to punish these Defendants in civilian criminal court for the same offenses for which they have been sanctioned in the military violates the Double Jeopardy Clauses of the Federal Constitution (5th and 14th Amendments) and the New York State Constitution (Article I, Section VI) barring multiple punishments for the same offense citing United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 and United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549.

The prosecutor argues that the Double Jeopardy Clause of the Federal and New York State Constitution does not apply under the circumstances of these cases based on Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450.

The defense requests dismissal in the interest of justice and for other relief as the court may feels is just and proper. The court's sua sponte motion as provided under Criminal Procedure Law sections 170.40 and 210.40 will consider dismissing the charges in the interest of justice based on the denial of equal protection under the Federal and State Constitutions.

The prosecution opposes the equal protection argument based on People v. Blount, 90 N.Y.2d 998, 665 N.Y.S.2d 626, 688 N.E.2d 500, arguing there is a rational basis for its selective prosecution.

Double Jeopardy

In Hudson v. United States, the Court ruled "[W]e believe that Halper's deviation from long standing double jeopardy principles was ill considered" Hudson, supra, 522 U.S. 93, 118 S.Ct. p. 494. The Hudson Court continued saying that "the Halper test for determining whether a particular sanction is 'punitive' and thus subject to the structures of the Double Jeopardy Clause, has proven unworkable [citing Ursery as an example]." Hudson, supra, 522 U.S. 93, 118 S.Ct. p. 494.

The net result of the Hudson decision in Justice Thomas and Scalia's concurring opinions was that "[T]oday's opinion [returns] the law to its state immediately prior to Halper --which acknowledged a constitutional prohibition of multiple punishments but required successive criminal prosecutions." Hudson, supra, 522 U.S. 93, 118 S.Ct. p. 497.

In People v. Vasquez, 89 N.Y.2d 521, 655 N.Y.S.2d 870, 678 N.E.2d 482, the issue before the Court was whether the "Double Jeopardy Clauses of the State and Federal Constitutions bar the criminal prosecution of an inmate who has previously been the subject of internal prison disciplinary sanction." Vasquez, supra, p. 525, 655 N.Y.S.2d 870, 678 N.E.2d 482. The Court said "[T]he Double Jeopardy Clause prohibits both multiple prosecutions for the same offense (following either conviction or acquittal) and multiple punishments for the same offense United States v. Halper, supra, 490 U.S. at 440, 109 S.Ct. at 1897". Vasquez, supra, p. 527, 655 N.Y.S.2d 870, 678 N.E.2d 482.

The Hudson decision removes from consideration the Double Jeopardy issue. However, this Court notes the long tradition of the Court of Appeals to provide under the New York Constitution greater protection for citizens of this State than afforded by the Supreme Court under the United States Constitution. People v. P.J. Video, Inc., 68 N.Y.2d 296, 508 N.Y.S.2d 907, 501 N.E.2d 556. The question of whether the Halper and Ursery rationale will be retained by the Court of Appeals must be left to the Court of Appeals. People v. Brewer, 173 Misc.2d 520, 662 N.Y.S.2d 172.

This Court based on the reasoning of U.S. Magistrate Daniel Scanlon in United States v. Volpe, U.S.C.D. (Northern District of New York) 79-CR-133 (11/25/97), would find under the Halper and Ursery rationale, should it be retained in New York by the Court of Appeals, that the defendants should have their cases dismissed under the Double Jeopardy Clause of the New York Constitution. Judge Scanlon correctly pointed out the false analogy made between a military enlisted person and an employee in a private business by the Second Circuit Court of Appeals in U.S. v. McAllister, 119 F.3d 198 (1997). In McAllister, at 201, the court concluded that "where the government, acting as employer of members of the armed forces, disciplines a member by using measures that are available to private employers, and are not uniquely within the government's power to punish for criminal wrong-doing, such discipline ordinarily will not constitute 'punishment' within [the] meaning of the Double Jeopardy Clause." As Judge Scanlon pointed out "[s]uch punishment goes beyond the actions of a private employer could legally take; and, therefore, prosecution in this forum would violate the Double Jeopardy Clause." Volpe, supra, pps. 7-8.

The enlistment contract makes the soldier a chattel fettered to the service under a bondage until he is legally discharged. This enforceable retention of the "military enlisted employee" clearly distinguishes their situation from the voluntary association found in a civilian employer--employee relationship.

This being the case, all sanctions resulting from the administrative punishments imposed on the defendants from which they cannot escape under the threat of court martial, make them punitive by their compulsory nature. These defendants unlike a civilian employee find themselves imprisoned in a system where they are forced to endure administrative sanctions a civilian employee could avoid by simply leaving for another job.

Equal Protection

In Hudson v. United States, supra, the court said that some of the ills at which Harper was directed are addressed by other constitutional provisions: "[T]he Due Process and Equal Protection Clauses already protect individuals from sanctions which are downright irrational." Hudson, supra, 522 U.S. 93, 118 S.Ct. p. 495.

In People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139, the court said, "the claim of discriminatory ... enforcement should be addressed to the court before trial as a motion to dismiss the prosecution upon constitutional grounds. A claim of discriminatory enforcement ... goes ... to the ... basic threshold question whether the court, as an agency of government, should lend itself to a prosecution which discriminates against the defendant by singling him out for prosecution because of ... some ... illegitimate reason offensive to our notions of fair play and equal treatment under the law. This question, ... reaches the very integrity of the judicial and law enforcement processes, and ... should be addressed to the court by a pretrial motion to dismiss the information or indictment in accordance with article 170 or article 210 of the Criminal Procedure Law." People v. Goodman, supra, p. 269, 338 N.Y.S.2d 97, 290 N.E.2d 139.

In 303 West 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 694, 416 N.Y.S.2d 219, 389 N.E.2d 815, the court observed, "the theory is that conscious discrimination by public authorities taints the integrity of the legal process to the degree that no court should lend itself to adjudicate the merits of the enforcement action. This, even though the party raising the unequal protection claim may well have been guilty of violating the law."

The court said, "the underlying right asserted by petitioner is to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution" (art. I, Sec.11), one of the governing principles of our society. As enunciated more than a century ago in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220, it forbids a public authority from applying or enforcing an admittedly valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances". We have recognized the principle in cases involving the enforcement of the criminal laws (see People v. Acme Markets, 37 N.Y.2d 326, 372 N.Y.S.2d 590, 334 N.E.2d 555; People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139) and the administrative regulation of public health, safety and morals (see Matter of DiMaggio v. Brown, 19 N.Y.2d 283, 279 N.Y.S.2d 161, 225 N.E.2d 871; Bell v. New York State Liquor Auth., 48 A.D.2d 83, 367 N.Y.S.2d 875). To invoke the right successfully, however, both the "unequal hand" and the "evil eye" requirements must be proven--to wit, there must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification (Matter of DiMaggio v. Brown, supra, 19 N.Y.2d pp. 290-291, 279 N.Y.S.2d pp. 166-167, 225 N.E.2d pp. 874-875; Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446; Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct....

To continue reading

Request your trial
1 cases
  • State v. Dinur
    • United States
    • Court of Appeals of Texas
    • September 20, 2012
    ...452, 464 (Tex.App.-Amarillo 2003, pet. denied) (defendant prosecuted for violation of city ordinance); People v. Abram, 178 Misc.2d 120, 680 N.Y.S.2d 414, 417–19 (N.Y.City Ct.1998) (district attorney's policy for prosecuting DWI offenders unless they were of certain military rank violated e......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT