People v. Dowd, K-6

• Decision Date: 12 May 1988
• Docket Number: K-6
• Citation: 530 N.Y.S.2d 733,140 Misc.2d 436
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York v. James DOWD, Defendant

Page 733

530 N.Y.S.2d 733

140 Misc.2d 436

The PEOPLE of the State of New York v. James DOWD, Defendant.

Supreme Court, Criminal Term Queens County, Part K-6.

May 12, 1988.

John J. Santucci, Dist. Atty., Queens County, Kew Gardens (Mark Osnowitz, Asst. Dist. Atty., of counsel), for the People.

Alan E. Kudisch, Kew Gardens, for defendant.

ARTHUR J. COOPERMAN, Justice.

Defendant stands convicted after a jury trial of Robbery in the First Degree, Robbery in the Second Degree, Attempted Robbery in the First Degree and Attempted Robbery in the Second Degree.

On January 7, 1986, the date originally set for the imposition of sentence, defense counsel moved pursuant to CPL § 460.50 for a stay of the execution of the sentence pending the determination of an appeal of the instant conviction. The court imposed the minimum sentence authorized by law of an indeterminate term of imprisonment of no less than two and no more than six years for the top count of the indictment and stayed the execution thereof upon defendant's application.

The court found that in view of the strongly contested issue of identification, the defendant's lack of previous convictions, other than a youthful offender adjudication, his stable living arrangements evincing a satisfactory tie to the community at the time, his expressed desire to continue his schooling and his demonstrated history of reliability in appearing in court, a stay of the execution of the sentence was appropriate pending the outcome of his appeal.

Defendant's conviction was affirmed by the Appellate Division, Second Department on November 2, 1987, 134 A.D.2d 275, 520 N.Y.S.2d 447 (1987), and the case was remanded to the trial court for execution of the sentence.

The matter was adjourned with the consent of the People and the court in order to allow defendant to explore whether any alternative was possible other than the execution of sentence of incarceration imposed by this court more than two years ago.

He now moves pursuant to CPL § 440.20 to have the sentencing provisions of Penal Law § 70.00 declared unconstitutional as applied to him. The People take no position with respect to the motion but request, should the court grant defendant's motion, that a sentence of probation be conditioned upon defendant staying out of trouble and not being re-arrested or violating probation in any way.

The Eighth Amendment prohibition against cruel and unusual punishment has been incorporated into the constitution of almost every American jurisdiction through the Fourteenth Amendment ( Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758; 36 N.Y.U.L.Rev. 846).

The court recognizes that the Legislature has latitude in determining which ills of society require criminal sanctions, and in imposing, as it reasonably views them, punishments, even mandatory ones, appropriate to each ( People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338).

Justice McKenna, speaking for the Supreme Court in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, undertook an exhaustive analysis of the Eighth Amendment. He concluded that the cruel and unusual punishment clause covers disproportionate penalties as well as those objectionable in kind.

However, notwithstanding the power of the Legislature to make laws, it is inherent in the judicial branch of government to determine whether the Legislature has contravened a constitutional prohibition. The court in Weems said, in that respect and for that purpose "the legislative power is brought to the judgment of a power superior to it for the instant" ( Weems v. United States, supra, at 378-379, 30 S.Ct. 544).

In Furman v. Georgia, 408 U.S. 238, 282, 92 S.Ct. 2726, 33 L.Ed.2d 346, the court enunciated the test under which a court may determine that a punishment is "cruel and unusual" as follows:

"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 [Eighth Amendment]."

Although ordinarily reserved for the imposition of capital punishment or barbaric and inhumane treatment of prisoners, the prohibition against cruel and unusual punishment has been found by the Court of Appeals to be applicable to New York's Drug Laws (see People v. Broadie, supra ).

That Court, having rejected such application in Broadie, nonetheless said, "This is not to say that in some rare case on its particular facts it may not be found that the statutes have been unconstitutionally applied."

Several lower courts have reasoned that this dictum gives them the authority to impose probationary sentences in the face of mandatory imprisonment requirements in drug cases.

Rejecting a subjective analysis, the Court of Appeals set forth...