People v. Barnwell

• Decision Date: 25 April 1989
• Citation: 541 N.Y.S.2d 664,143 Misc.2d 922
• Parties: , 53 Ed. Law Rep. 1257 The PEOPLE of the State of New York v. Matthew BARNWELL, Defendant.
• Court: New York City Court

Page 664

541 N.Y.S.2d 664

143 Misc.2d 922, 53 Ed. Law Rep. 1257

The PEOPLE of the State of New York v. Matthew BARNWELL, Defendant.

Criminal Court of the City of New York,

New York County, Part Jury 7.

April 25, 1989.

Robert M. Morgenthau, Dist. Atty., New York County (Paul Shechtman, of counsel), for the People.

William Kunstler, New York City, for defendant.

RENEE A. WHITE, Judge:

The defendant was arraigned and charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03), a class A misdemeanor. The defendant now moves to dismiss the charge on the ground that defendant's arrest and prosecution constitutes selective prosecution in violation of the Constitutions of the State of New York and the United States of America. In the alternative, in order to further substantiate this claim, the defendant requests an evidentiary hearing to determine 1) whether the arrest of the defendant was motivated by an improper consideration; and 2) the ordinary disposition of similarly situated offenders.

I. TIMELINESS OF DEFENDANT'S MOTION

Initially, the People contend that defendant's motion should be denied on the ground that it is untimely pursuant to CPL § 255.20.

The court denies the People's application on the following grounds: (1) the defendant's initial attorney withdrew from the case on March 21, 1989 and present counsel only recently filed a notice of appearance on April 5, 1989 and (2) the basis of defendant's motion is a violation of his constitutional rights, and there are serious allegations raised by the defendant. Given the facts and circumstances of this case the court finds that the defendant is entitled to have this motion decided on its merits.

Accordingly, the People's motion to preclude as untimely is denied.

II. ARGUMENTS

The defendant, a high school principal, alleges that he has been singled out for prosecution because of a formal policy, of the New York County District Attorney's Office, to consider the defendant's position in the community as a relevant factor in plea negotiations. The defendant further asserts that those individuals who enjoy "higher positions" in the community are prosecuted more vigorously and offered less favorable pleas. The defendant also contends that his arrest was based on the same discriminatory basis.

Annexed to defendant's moving papers is an article from Newsday dated April 1, 1989. According to that article, Assistant District Attorney Paul Shechtman stated that it is the policy of the Manhattan District Attorney's office to consider "the defendant's position in the community as a relevant factor in plea discussions." Newsday, April 1, 1989, p. 16.

The defendant further argues that his arrest was also based on this discriminatory policy. On January 25, 1989 Police Officer Luyando testified that on the day of defendant's arrest, she observed twenty-five individuals in drug transactions. Only three, including the defendant, were arrested. T. at 52. The officer further testified that the others were not arrested because "[t]here is not enough time in the day" to arrest everyone. T. at 67.

The People do not deny that they intend to vigorously prosecute the defendant. On the contrary, the People argue that under certain circumstances selective enforcement is justifiable. The People further contend that strong public policy requires the prosecution of a school principal who buys crack. The People allege that the defendant's actions led to the neglect of the school children under his supervision who looked up to the defendant as a role model.

In response to defendant's argument regarding his arrest, the People contend that the mere fact that others were not arrested is insufficient to warrant a finding that defendant's arrest was unconstitutionally selective.

III. APPLICABLE LAW

Absent any consciously illegal discrimination, selectivity in enforcement or unequal application of the law is not in itself unconstitutional. Oyler v. Boyles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139 (1972).

It is well established that a prosecutorial discretion is inherent in our judicial system. United States v. Goodwin, 457 U.S. 368, 380, 102 S.Ct. 2485, 2492, 73 L.Ed.2d 74 (1982); United States v. Swanson, 509 F.2d 1205 (8th Cir., 1975); United States v. Wiley, 503 F.2d 106 (8th Cir., 1974). The decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely on the People's discretion as long as there is probable cause to believe that the defendant committed a crime. Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).

However, prosecutorial discretion may be deemed unlawful when the prosecutor exercises discretion over which crime and people to prosecute using criteria that unlawfully discriminates because of race, religion or other arbitrary classification. In the landmark case, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the Supreme Court declared that a constitutional law could be unconstitutional in its enforcement. The Court held:

[T]hough the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

Id. at 373-4, 6 S.Ct. at 1072-73.

To support a defense of selective prosecution, the defendant bears a heavy burden of establishing illegal discriminatory practice. 303 West 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 416 N.Y.S.2d 219, 389 N.E.2d 815 (1979); People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139 (1972). In absence of such a showing, there is a strong presumption in the legality of the prosecution--that the enforcement of laws was undertaken in good faith and in a nondiscriminatory fashion. 303 West 42nd St. Corp. v. Klein, supra; United States v. Ojala, 544 F.2d 940 (8th Cir., 1976); United States v. Falk, 479 F.2d 616 (7th Cir., 1973). To successfully invoke the defense the defendant must show two factors. The defendant must demonstrate that the law was not applied to others similarly situated; and secondly, that the government's discriminatory selection of him for prosecution has been invidious, that is, based upon such impermissible considerations as race, religion or some other arbitrary classification. Wayte v. United States, supra; Matter of 303 West 42nd Street Corp. v. Klein, supra; DiMaggio v. Brown, 19 N.Y.2d 283, 279 N.Y.S.2d 161, 225 N.E.2d 871 (1967). It is not enough to establish a denial of equal protection. The alleged misconduct must be due to an intentional and purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944).

The court is unaware of any case holding that a selective enforcement claim based on a defendant's status in the community constitutes an invidious classification. However, this court is not without judicial guidelines. Indeed, at least two Federal courts have considered and rejected similar arguments of selective enforcement in analogous situations.

The Eighth Circuit of the Court of Appeals upheld the conviction of two certified public accountants for their failure to file income tax returns. The selective program of investigation and prosecution of attorneys, accountants and other professionals who customarily gave tax advice to others and who should have been knowledgeable about their tax responsibilities did not constitute a federal constitutional violation. United States v. Swanson, supra.

In United States v. Peskin, 527 F.2d 71 (7th Cir., 1975), cert. denied 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976) the court rejected defendant's claim that he was selectively prosecuted because he was politically prominent and newsworthy. The defendant was a former member of the Illinois General Assembly. The court stated:

[A]ssuming that the decision to indict Peskin and press for trial was based in part on consideration of his political prominence, this is not an impermissible basis for selection. It makes good sense to prosecute those who will receive the media's attention. Publication of the proceedings may enhance the deterrent effect of the prosecution and maintain public faith in the precept that public officials are not above the law.

Id. at 86.

IV. DISCUSSION

The basis of defendant's argument is directed at an asserted disparity in the plea offered to the defendant as compared to other first offenders prosecuted under the same statute. The...