People v. Billi

• Decision Date: 20 May 1977
• Citation: 395 N.Y.S.2d 353,90 Misc.2d 568
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Anthony BILLI, John Bonamassa, Ralph Esposito and Dennis Wilson, Defendants.
• Court: New York Supreme Court

Page 353

395 N.Y.S.2d 353

90 Misc.2d 568

The PEOPLE of the State of New York, Plaintiff, v. Anthony BILLI, John Bonamassa, Ralph Esposito and Dennis Wilson, Defendants.

Supreme Court, Kings County, Part 25.

May 20, 1977.

Eugene Gold, Brooklyn (John A. Cianci, Asst. Dist. Atty., Kings County, Brooklyn, of counsel), for plaintiff.

Murray Cutler, Brooklyn, for defendant Billi.

Martin Light, Brooklyn, for defendant Bonamassa.

Leon Port, Brooklyn, for defendant Esposito.

Leonard Fusfield, Brooklyn, for defendant Wilson.

LUIGI R. MARANO, Justice.

This is a motion for an evidentiary hearing to determine:

1. Whether cocaine is a narcotic drug as described in the Penal Law and Public Health Law of the State of New York.

2. To hear evidence, scientific and otherwise, to determine the true propensities, proper classification and legal definition of the substance known as cocaine.

3. To determine whether or not the Legislature erred in listing cocaine as a narcotic drug.

4. To determine that if the Legislature has in fact erred in its classification of cocaine, what the proper classification of cocaine should be.

5. If cocaine is determined not to be a narcotic drug, to determine whether the court should, on its own motion, declare that the laws fixing the definition of cocaine as a narcotic drug, and fixing the penalties thereof, are unconstitutional.

6. To determine whether the court has the power, after hearing and determining evidence, to supersede the Legislature in making a determination that the Legislature's definition and prescribed penalties are in error and that to apply them would be unconstitutional and a denial of the rights of the accused, and for such other and further relief as to this court may seem just and proper.

The defendant contends that the question is whether or not this court should place itself in the position of deciding for itself whether the Legislature was correct in passing the law listing cocaine as a narcotic substance and whether the court has the power to second guess the Legislature.

The defendant states that: (1) a public interest must exist in the control of cocaine, and (2) the law must have a rational basis. Also, he contends that the law is unconstitutional substantively, and that the penalties are also as applied to cocaine.

This court will concede for the purpose of this motion that cocaine is not medically a narcotic drug, but a central nervous system stimulant.

The issue then, is whether the Legislature can rationally classify a non-narcotic central nervous system stimulant as a narcotic for penalty and regulatory purposes.

The defendant has submitted an affidavit, magazine articles, and a lengthy memorandum of law in support of the principal ground on which his motion to dismiss rests, viz., the arbitrary and irrational classification of cocaine as a narcotic drug.

Cocaine is not a narcotic drug in a medical or pharmacological sense, but in law the Legislature has defined it as such. The Legislature has listed cocaine as a narcotic drug because it considered cocaine a dangerous drug which required control in the public interest. The Temporary State Commission to Evaluate the Drug Laws made many studies and conducted public hearings before determining that cocaine was dangerous and that its illegal distribution and use must be regulated. The commission so advised the Legislature in its interim report N.Y. Legislative Doc., 1972 No. 10. The commission also noted that physiological dependence can develop with intravenous use.

The abuse potential of cocaine may result in: (1) possible overdose death; (2) severe non-fatal acute poisoning from sniffing; (3) chronic psychological effects: cases of demoralization and general deterioration with periodic psychoses. One expert calls cocaine abuse "the most severe of all forms of toxicomania and the most difficult to cure." (Bejerot, Addiction and Society, pp. 66-67.) Some experts state that if cocaine were more easily available, or if more people took to using it intravenously, there might be considerable serious abuse. A cocaine abuser may want to go on taking the drug even though he knows that it is making him paranoid (Joel & Frankel, Der Cocainismus, p. 44). The delusions that sometime accompany cocaine abuse resemble paranoid states (Maier, Der Kokainismus, pp. 118-119).

The Working Papers of the National Commission on Reform of Federal Criminal Laws, 1085 (1970), states that cocaine "should be classified as a dangerous drug because it may precipitate acute anxiety and psychotic episodes, and there is a strong possibility that such episodes may involve aggressive or violent behavior." The Legislature was advised by the Temporary State Commission to Evaluate the Drug Laws, through its interim report (N.Y.Legis.Doc. 1972, No. 10, p. 67) that, "Although cocaine is a stimulant, rather than a narcotic, it has been generally considered as a narcotic for purposes of regulating its non-medical use. The abuse patterns and potential are somewhat different; however, the differences are not sufficient to warrant separate or different treatment of cocaine in the penal provisions." The Legislature found that cocaine has a high potential for abuse both psychologically and physically.

The public interest requires that legislative enactments be given recognition and be enforced by the courts as embodying the will of the people (Zorach v. Clauson, 303 N.Y. 161, 172, 100 N.E.2d 463, 467, affd. 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954).

A legislative enactment carries a strong presumption of constitutionality (Wasmuth v. Allen, 14 N.Y.2d 391, 397, 252 N.Y.S.2d 65, 69, 200 N.E.2d 756, 758). "So it is the duty of courts to adopt a construction of a statute that will bring it into harmony with the Constitution and with legislative intent, and no narrow construction of a statute may thwart the legislative design." (McKinney's Cons. Laws of N.Y., Book 1, Statutes, # 92.) Statutes are presumed to be valid unless they bear no rational relationship to legitimate legislative purposes (United States v. Carolene Products Co., 304 U.S. 144, 152-54, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), United States v. Kiffer, 477 F.2d 349, 352-353, 2 Cir.). The courts will declare an act of the Legislature unconstitutional only when the unconstitutionality is "clear" (Garcia v. Pan Amer. Airways, 183 Misc. 258, 50 N.Y.S.2d 250, affd. 269 App.Div. 287, 55 N.Y.S.2d 317, affd. 295 N.Y. 852, 67 N.E.2d 257, cert. den. 329 U.S. 741, 67 S.Ct. 79, 91 L.Ed. 640). The finding of unconstitutionality must be without doubt (People v. Crane, 214 N.Y. 154, 173, 108 N.E. 427, 433, affd. 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218). The burden of proving invalidity is upon the defendants who challenge the Constitution to establish unconstitutionality beyond a reasonable doubt (Fenster v. Leary, 20 N.Y.2d 309, 314, 282 N.Y.S.2d 739, 743, 229 N.E.2d 426, 428; Matter of Fay, 291 N.Y. 198, 52 N.E.2d 97; People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205).

In United States v. Smaldone (484 F.2d 311, 10 Cir. (1973), cert. den. 415 U.S. 915 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974)), the Court of Appeals held: "The judicial approach to this kind of question is that the classification will be upheld if any facts justify it." (484 F.2d at 320.)

If there exist facts which reasonably support findings and conclusions that cocaine use leads to effects which pose serious problems for the community, the measures chosen to deal with the causes and effects reflect a societal policy which the courts are bound to observe (Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974)).

The conduct of an individual and the use of property may be regulated as an exercise of the police power, but to be valid there must be some just, fair, and reasonable connection between the police power and the promotion of the health, comfort, safety and welfare of society (People v. Bunis, 9 N.Y.2d 1, 4, 210 N.Y.S.2d 505, 506, 172 N.E.2d 273, 274).

There is no merit to defendant's contention that the classification of cocaine within the definition of the term "narcotic drug" is arbitrary and irrational. Conceding that the statutory definition is broader than the dictionary definition, the Legislature is not required to follow the latter in applying the term to a number of different classes of drugs for purposes of legal control (United States v. Di Laura, 394 F.Supp. 770 (D.C. 1974)). In assessing the gravity of a criminal offense, the primary consideration is the harm it causes to society. The Legislature, in making this assessment, could properly view criminal narcotics sales not as a series of isolated transactions, but as symptoms of the widespread and pernicious phenomenon of drug distribution. Social harm in drug distribution is great indeed. The drug seller, at every level of distribution, is at the root of the pervasive cycle of destructive drug abuse (see, generally, President's Comm. on Law Enforcement and the Administration of Justice, Task Force on Narcotics and Drug Abuse (1967), p. 7). Defendants would minimize drug trafficking by arguing that it is not a crime of violence. Because of their illegal occupation, however, drug traffickers do often commit crimes of violence against law enforcement officers and, because of the high stakes, engage in crimes of violence among themselves.

The Legislature may have concluded that the high price of cocaine on the illicit market attracts major drug dealers; or provides huge revenues for organized crime; or that a high-profit...