People v. Bullock

• Citation: 362 N.Y.S.2d 682,80 Misc.2d 73
• Parties: The PEOPLE of the State of New York v. Joseph C. BULLOCK, Defendant.
• Decision Date: 07 November 1974
• Court: United States State Supreme Court (New York)

Page 682

362 N.Y.S.2d 682

80 Misc.2d 73

The PEOPLE of the State of New York v. Joseph C. BULLOCK, Defendant.

Supreme Court, Monroe County.

Nov. 7, 1974.

Jack B. Lazarus, Dist. Atty., for the County of Monroe by Donald J. Wisner, Rochester, of counsel, for the People.

Peter L. Yellin, Monroe County Public Defender by Jack Carter, of counsel, for the motion.

DECISION

JOHN F. O'MARA, Justice.

The defendant was convicted after a jury trial of Criminal Sale of a Controlled Substance in the First Degree based on a $5000.00 sale of cocaine, Criminal Possession of a Controlled Substance in the Fifth Degree, and Criminally Using Drug Paraphernalia in the Second Degree. The defendant has moved to set aside his sale conviction (CPL 330.30(1)) on the ground that the offense and its related sentencing provisions violate the United States Constitution.

The crime of Criminal Sale of a Controlled Substance in the First Degree is a Class A--I felony which requires upon conviction a mandatory indeterminate sentence (Penal Law 60.05(1)) with a maximum of life (Penal Law 70.00(2)(a)) and a minimum between 15 and 25 years (Penal Law 70.00(3)(a)(i)). A defendant indicted for a Class A drug felony is prohibited from reducing the charge below a Class A--III felony by plea bargaining (CPL 220.10(6)(a)) and may not have his Class A drug felony charge satisfied by his plea to a non-Class A charge in a separate indictment (CPL 220.30(3)(b)(i)). A defendant sentenced as a Class A drug felon will face lifetime parole when released (Penal Law 70.40(1); Correction Law 212(8) see Rosenblatt, New York's New Drug Laws and Sentencing Statutes, Law Journal Press (1973)).

Defendant's first claim is that the punishment imposed on Class A drug felons is cruel and unusual in violation of the Eighth and Fourteenth Amendments. Defendant first argues that the seriousness of the crime measured by its danger to the individual and to society is wholly disproportionate to the mandated punishment. Secondly, he states that a disproportionality exists between the punishment for Class A drug crimes and that for more serious crimes within New York. Thirdly, the defendant cites the punishment imposed for similar crimes in other jurisdictions as indicative of the cruel and unusual nature of New York's laws. Lastly, defendant relies upon the expressions found in various studies and in model legislation.

Defendant's second claim is that the legislation is an arbitrary classification which constitutes a denial of equal protection of the laws because Class A drug offenses are punished more severely in New York than crimes of a similar or more serious nature.

In determining the constitutionality of a statute this Court is confronted with a strong presumption of constitutionality together with a presumption that the legislature has investigated the need for the legislation and found the facts necessary to support it. (Matter of Taylor v. Sise, 33 N.Y.2d 357, 364, 352 N.Y.S.2d 924, 929, 308 N.E.2d 442, 446 and I.L.F.Y. Co. v. Temporary State Housing Rent Comm., 10 N.Y.2d 263, 269, 219 N.Y.S.2d 249, 252--253, 176 N.E.2d 822, 825). It is a matter of record that the legislature had the benefit of many detailed and exhaustive reports on the problem of illicit drug traffic including those of the Temporary State Commission to Evaluate the Drug Laws and that it further held extensive hearings at which voluminous evidence was received. The Court is personally familiar with those hearings, having testified before the Joint Codes Committees of the Senate and Assembly which considered at length the legislation in question. It is significant to note that the original Bill submitted to the legislature called for a life sentence Without parole for the sale of any amount of narcotics, hallucinogens or amphetamines (see N.Y. Law Journal 1/15/73) and that there was substantial support before the legislature, this Court not included, for that proposal. (Testimony before Joint Codes Committees, Feb., 1973).

Despite the aforesaid presumption and the legislative investigation this Court must still determine whether the resulting statute passes constitutional muster. This Court, even if it felt that perhaps a different statute were preferable, cannot substitute its judgment for that of the legislature if the statute enacted by the legislature does not violate the Constitution (People v. Griswold, 213 N.Y. 92, 97, 106 N.E. 929, 931; Matter of Taylor v. Sise, Supra, 33 N.Y. at p. 365, 352 N.Y.S.2d at p. 930--931, 308 N.E.2d at p. 447; Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 706, 38 L.Ed.2d 618).

The Supreme Court, in declaring certain statutes calling for the death penalty cunconstitutional, discussed the question of cruel and unusual punishment in great detail (Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346). While there was no majority opinion in that case, the following excerpt from Justice Brennan's opinion appears to best summarize the factors discussed by the various Justices:

'The test, then, will ordinarily be a cumulative one: 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.' (408 U.S. 238, 282, 92 S.Ct. 2726, 2748).

In Furman, supra, the factor which appeared to carry the greatest weight in the finding of unconstitutionality was the arbitrary, capricious and discriminatory fashion in which the penalty was imposed. The statutes there were completely discretionary with regard to the imposition of the maximum sentence, that is death, and it was rarely imposed. Under the present statute with one exception (Penal Law 65.00(1)(b)), the imposition of the maximum sentence, an indeterminate sentence of life imprisonment, is mandatory and thus there can be no claim that the statute here can be arbitrarily applied as to any person charged with an A--I, II or III drug felony.

A second principle considered by the Supreme Court in Furman, supra, is that the punishment may not be 'unusually severe'. Justice Brennan summarized it is follows: '. . . a punishment must not be so severe as to be degrading to the dignity of human beings' (408 U.S. 238, 271, 92 S.Ct. 2726, 2742). The defendant does not argue, nor could he, that an indeterminate sentence of life imprisonment per se is in all cases so severe as to be cruel and unusual punishment. In fact, the Supreme Court in Furman, supra, left open the question of whether the death penalty is always unconstitutional.

In Class A drug felony cases the severity of the life maximum is offset by the defendant's eligibility for parole following service of the minimum sentence imposed by the Court. Such an indeterminate sentence permits the Board of Parole to release the defendant from prison when it is of the opinion '. . . there is reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society' (Correction Law 213). A defendant must be considered for parole at least one month prior to the expiration of his minimum sentence and, if parole is denied, not later than every 24 months thereafter (Correction Law 212). Such a sentencing structure and the criteria for parole selection considered by the Board of Parole (see 7 N.Y.C.R.R. Section 1.10) permit release from incarceration at the most opportune time from the standpoint of both the individual and society. The fact that such parole would be for life is only indicative of the legislative judgment that Class A drug felons require continuing supervision to insure that they do not return to their illicit drug activities. This Court has noted that many defendants who come before it charged with drug offenses are in fact recidivists and the testimony of former Commissioner of Corrections Oswald indicated that felons convicted of narcotic crimes have a 50% Higher recidivist...