People v. Blount

Citation82 Misc.2d 964,370 N.Y.S.2d 437
PartiesPEOPLE of the State of New York v. Robert K. BLOUNT, Defendant.
Decision Date27 June 1975
CourtNew York County Court

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

James J. McDonough, Legal Aid Society of Nassau County, Mineola, for defendant.

DOUGLAS F. YOUNG, Judge.

The defendant, by his attorney, applies to the court for an order setting aside its sentence of June 21, 1974 on the grounds that it was illegally imposed. (CPL 440.20 (subd. 1)). The defendant was sentenced as a second felony offender in accordance with the provisions of Penal Law 70.06. He argues that the statute is unconstitutional or, at least, not applicable to him.

After a jury trial the defendant was convicted of Arson in the Second Degree on April 25, 1974. At sentencing under an information alleging a predicate felony conviction, it was established that the defendant had been convicted in South Carolina of an assault and battery upon his wife, a felony. Certified records from South Carolina indicate that the facts underlying this predicate felony consisted of the defendant shooting his wife five times with a pistol.

Under Penal Law § 70.06 (subd. 1) an individual may be found to be a second felony offender if he has been convicted in any jurisdiction other than New York of an offense for which a sentence of imprisonment for a period in excess of one year or of death was authorized, irrespective of whether such sentence was actually imposed. There is no question but that this defendant fits within this definition. However, under section 812 of the New York Family Court Act, the Family Court has exclusive original jurisdiction over such intrafamilial disputes as an assault between spouses. Only upon the Family Court's determination that its processes would not be appropriate in a particular case does a criminal court acquire jurisdiction. (Fam. Ct. Act § 816). The defendant argues that this aspect of New York law and the absence of a similar South Carolina procedure renders PL 70.06 unconstitutional or, at least, not applicable to him.

The defendant's is a two-step argument. First, this Court would have to follow People v. Mazzie, 78 Misc.2d 1014, 358 N.Y.S.2d 307 (Sup.Ct., N.Y.Co.). There Justice Burton Roberts found PL § 70.06 unconstitutional insofar as it recognized as predicate felony convictions out-of-state convictions for crimes which would not have been felonies if committed in New York. Mazzie held that such a provision amounted to an unconstitutional delegation of legislative power:

'The classification of offenses for purposes of punishment and the prescription of punishment for crimes is clearly legislative power (People v. Blanchard, 288 N.Y. 145 (42 N.E.2d 7)) and thus it may not be delegated to the Legislature of another jurisdiction. Punishment, it follows logically, must be based upon New York standards by a Legislature responsible to the citizenry of this State. The provision in question, insofar as it relies on the standards of other jurisdictions to establish who must be considered a second felony offender in New York and receive mandatory increased punishment, violates this principle.' (People v. Mazzie, supra at 1017, 358 N.Y.S.2d at 311).

In addition, Mazzie found a denial of equal protection in classifying as prior felons those convicted of felonies in other states while persons who performed the same acts in New York would not be prior felons if New York did not punish such conduct as a felony.

Secondly, even if this court were to adopt the views expressed in Mazzie, the defendant's argument would not prevail unless we also found that People v. Olah, 300 N.Y. 96, 89 N.E.2d 329, which had been decided under the former Penal Law, was applicable to the new statute. In Olah the Court of Appeals held that an out-of-state conviction would not be considered a predicate felony conviction unless the minimum conduct necessary to constitute a violation of the foreign statute would also constitute a felony in New York. Thus, a court would not look at the accusations in a New Jersey indictment which accused the defendant of stealing $200.00, but rather at the statute which made it a felony to steal $20.00 or more. Since theft of $20.00 would be a misdemeanor, and not a felony in New York, the out-of-state conviction would not constitute a predicate felony. In the instant case, unless we look to the minimum conduct necessary to violate the South Carolina statute and then presume that had the crime occurred in New York the Family Court would have retained jurisdiction, the defendant's argument avails not since his alleged conduct would have been a felony in New York. (PL § 120.05).

The holding in Mazzie has not been universally adopted. In a prior decision Justice Balbach of the Supreme Court, Queens County, after an historical review of recidivist statutes (see also, Note, 48 Va.L.Rev. 597), found that PL § 70.06 transgressed no constitutional boundaries. (People v. Starks, 78 Misc.2d 87, 355 N.Y.S.2d 906). In a subsequent decision addressed specifically to the reasoning in Mazzie, Justice Quinn of the Supreme Court, Westchester County, held that there was neither an unconstitutional delegation of legislative authority for a denial of equal protection. (People v. Wixson, 79 Misc.2d 557, 360 N.Y.S.2d 818).

Recidivist statutes imposed added penalties not for the prior conviction, but rather, in light of the prior conviction, a stiffer penalty is imposed for the crime of which the defendant currently stands convicted. (McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917). PL § 70.06 is thus not the delegation to a foreign legislature of the power to define and punish crime, but merely the description of circumstances under which enhanced punishment would be imposed for the violation of New York law. (See People v. Wilson, 13 N.Y.2d 277, 281, 246 N.Y.S.2d 608, 196 N.E.2d 251, compare Darweger v. Staats, 267 N.Y. 290, 306, 196 N.E. 61, and People v. Malmud, 4 A.D.2d 86, 164 N.Y.S.2d 204, with People v. Ryan, 267 N.Y. 133, 195 N.E. 822). The United States Supreme Court has held:

'The statute under which it (the sentence) was rendered is aimed at habitual criminals; and simply imposes a heavy penalty upon conviction of a felony committed in Massachusetts since its passage, by one who had been twice convicted and imprisoned for crime for not less than three years, in this, or in another state, or once in each. The punishment is for the new crime only, but is the heavier if he is an habitual criminal. . . . It is within the discretion of the legislature of the state to treat former imprisonment in another state as having the like effect as imprisonment in Massachusetts, to show the man is an habitual criminal.' (McDonald v. Massachusetts, supra, 180 U.S. at 312, 21 S.Ct. at 390; accord, Tyrrell v. Crouse, 422 F.2d 852 (10th Cir., 1970); State v. Crowe, 207 Kan. 473, 486 P.2d 503).

Thus, according foreign felony convictions the same status as domestic ones in the context of a recidivist statute is not an unconstitutional delegation of legislative authority.

The classification of individuals with prior out-of-state felony convictions as prior felons for sentencing purposes is rationally related to the object of the statute and does not violate the guarantee of equal protection. (Cf. Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618). Exaggerated fears of frivolous or perverse sisterstate felony conviction derives from an outdated chauvinism. Arkansas felony convictions for the theft of a turkey (Ark.Stat. § 41--3916.1) are no more likely than New York felony convictions for Interference With or Injury To Domestic Animals (Agriculture and Markets Law § 361). As was pointed out in People v. Wixson, supra, where the felony categorization is grossly disproportionate to the gravity of the defendant's out-of-state conduct, he may avail himself of the procedure in CPL § 400.21 (subd. 7(b)) for challenging the validity of the prior conviction. In the instant case, the defendant did not controvert the predicate felony information.

A return to the People v. Olah test of predicate felony convictions would involve the same nice complexities and whimsical inquiries into what might have been which led contemporary authorities to criticize the decision (see, 25 N.Y.U.L.Rev. 653; 50 Colum.L.Rev. 247; 63 Harv.L.Rev. 1448) and the Legislature to adopt another test...

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5 cases
  • US ex rel. Mercogliano v. COUNTY CT. OF NASSAU CTY.
    • United States
    • U.S. District Court — Eastern District of New York
    • June 16, 1976
    ...Second Department in this case, that § 70.06 does not deny equal protection to those in petitioner's position. See also People v. Blount, 82 Misc.2d 964, 370 N.Y.S.2d 437 (Co.Ct.Nassau Co.1975); People v. Sibila, 81 Misc.2d 1028, 367 N.Y.S.2d 193 (Co.Ct.Nassau We repeat, by way of final wor......
  • State v. Hayes
    • United States
    • Florida District Court of Appeals
    • June 11, 1976
    ...modified on different grounds at 182 So.2d 402 (Fla.1965). Courts in other jurisdictions have decided this issue. In People v. Blount, 82 Misc.2d 964, 370 N.Y.S.2d 437 (Nassau County Ct. N.Y.1975), the court 'Where a question has not yet been decided by the appellate courts in a certain dep......
  • Ross Bicycles, Inc. v. Citibank, N.A.
    • United States
    • New York Supreme Court — Appellate Division
    • April 11, 1989
    ...follow the decisions and precedents of the Appellate Division, which have jurisdiction of law and fact (People v. Blount, 82 Misc.2d 964, 968-969, 370 N.Y.S.2d 437 [County Court, Nassau County 1975]; U.S. Gypsum Co. v. Riley-Stoker Corp., 11 Misc.2d 572, 575, 174 N.Y.S.2d 18 [Supreme Court,......
  • People v. Kittles
    • United States
    • New York County Court
    • June 1, 1979
    ...this court feels constrained to follow the holding of the Appellate Division, even though it is not in our department (People v. Blount, 82 Misc.2d 964, 370 N.Y.S.2d 437). There is the further issue as to whether the mouth is an "intimate" part of the body within the meaning of the statute.......
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