People v. Cornish

• Decision Date: 23 April 1980
• Citation: 427 N.Y.S.2d 564,104 Misc.2d 72
• Parties: The PEOPLE of the State of New York v. William CORNISH.
• Court: New York Supreme Court

Page 564

427 N.Y.S.2d 564

104 Misc.2d 72

The PEOPLE of the State of New York v. William CORNISH.

Supreme Court, Criminal Term, Kings County Complex B.

April 23, 1980.

Eugene Gold, Dist. Atty., by Lucille DiBello, Asst. Dist. Atty., Brooklyn, for the People.

Leon B. Polsky, Legal Aid Society, New York City, by Harvey A. Herbert, Brooklyn, for defendant.

JOSEPH SLAVIN, Justice.

Defendant moves to dismiss the indictment on the ground that Penal Law, section 265.02, subdivision 1, is unconstitutionally vague, denies him equal protection of the law, and violates his constitutional right to due process of the law in that it fails to provide an opportunity to contest the constitutionality of his previous conviction.

Defendant has been indicted for criminal possession of a weapon in the third degree (three counts) and reckless endangerment in the second degree. The indictment charges defendant with possession as a felony rather than a misdemeanor because of a prior conviction. On December 18, 1979 the District Attorney filed an information alleging that the defendant had been convicted on July 11, 1967 for the crime of possession of policy slips. Defendant attempts to collaterally attack the predicate conviction by claiming that it was obtained in violation of his right to trial by jury.

In considering constitutional attacks the court is guided by the principle that courts of original jurisdiction should not set aside a statute as unconstitutional unless that conclusion is inescapable (Matter of Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539; Matter of Ahern v. South Buffalo Ry. Company, 303 N.Y. 545, 104 N.E.2d 898, affd. sub nom. South Buffalo Ry. Company v. Ahern, 344 U.S. 367, 73 S.Ct. 340, 97 L.Ed. 395; People v. Estrada, 80 Misc.2d 608, 364 N.Y.S.2d 332).

As the court stated in People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 488, 253 N.E.2d 202, 205, "There is a strong presumption that a statute duly enacted by the Legislature is constitutional. Indeed, we have held that in order to declare a law unconstitutional, the invalidity of the law must be demonstrated beyond a reasonable doubt (citations omitted)."

Penal Law 265.02, subdivision 1, reads as follows:

"A person is guilty of criminal possession of a weapon in the third degree when:

(1) He commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision 1, 2, 3 or 5 or section 245.01, and has been previously convicted of any crime;" * * *

Defendant claims that the words "any crime" are vague because of the failure of the statute to specify "whether such crime is defined by the present New York Penal Law, the criminal statutes of New York at the time of conviction, or, if such prior conviction was not in New York, the present statutes of the foreign jurisdiction or at the time of the conviction, nor does the statute state whether or not there is any time limit on such prior convictions * * * " (sic).

It is well settled that due process of law "prohibits a state from holding an individual 'criminally responsible for conduct which he could not reasonably understand to be proscribed' (United States v. Harriss, 347 U.S. 612, 617, (74 S.Ct. 808, 811, 98 L.Ed. 989)) * * * " (Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 244, 46 L.Ed.2d 185). The court in Papachristou v. City of Jackson, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, stated that a statute is unconstitutionally vague if, " * * * it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute,' (United States v. Harriss, 347 U.S. 612, 617, (74 S.Ct. 808, 811, 98 L.Ed. 989)) * * *." The court in Matter of Pomeroy v. Whalen, 44 N.Y.2d 992, 994, 408 N.Y.S.2d 336, 338, 380 N.E.2d 168, 169 stated the rule as follows: " * * * The test is whether a reasonable man subject to the statute would be informed of the nature of the offense prohibited and what is required of him * * *."

This court further notes that " * * * The quest for definiteness does not preclude the legislature from using ordinary terms to express ideas that find adequate interpretation in everyday usage and understanding (citations omitted) * * * " (People v. Illardo, 48 N.Y.2d 408, 414, 423 N.Y.S.2d 470, 472, 399 N.E.2d 59, 62).

It is also well established that " * * * A court may only consider a vagueness challenge on the facts of the case before it (citations omitted) * * * " (United States v. Ocegueda, 9 Cir., 564 F.2d 1363, 1365; see, also, United States v. Parness, 2 Cir., 503 F.2d 430).

Applying these tests to the defendant herein, the court finds that the defendant, allegedly having been convicted in 1967 for the crime of criminal possession of policy slips, knew that he had been convicted of "any crime." The phrase is clear and unambiguous and is not modified by any phrase (Lewis v. United States, --- U.S. ----, 100 S.Ct. 915, 63 L.Ed.2d 198). The phrase "any crime" means any crime no matter where, when or how committed, and needs no judicial interpretation. Under the Penal Law, both former and present possession of policy slips is a crime (PL 975, PL 225.30). The phrase is clear as it affects this defendant.

Defendant further claims that the statute denies him equal protection of the law in that "There is no rational basis to distinguish between persons who have been previously convicted of any crime and those who have not * * *." Further, defendant claims that the statute is void because it does not provide an opportunity to challenge the constitutionality of the previous conviction.

Both of these arguments were recently rejected by the court...