People v. Einhorn

• Court: New York Supreme Court
• Writing for the Court: ALLEN MURRAY MYERS; I therefore do not reach the issue of the effect of the failure of the police to give defendant a receipt for the items seized pursuant to the search warrant. However, the giving of a receipt as required by CPL is at the very leas
• Citation: People v. Einhorn, 75 Misc.2d 183, 346 N.Y.S.2d 986 (N.Y. Sup. Ct. 1973)
• Decision Date: 11 June 1973
• Parties: The PEOPLE of the State of New York v. Arthur EINHORN, Defendant.

Page 986

346 N.Y.S.2d 986

75 Misc.2d 183

The PEOPLE of the State of New York v. Arthur EINHORN, Defendant.

Supreme Court, Special Narcotics, New York County, Part G.

June 11, 1973.

Frank S. Hogan, Dist. Atty., New York County, by Leonard P. Rienzi, Asst. Dist. Atty., New York City, for the People.

E. Growman, New York City, for defendant.

ALLEN MURRAY MYERS, Justice.

The defendant, a pharmacist, is charged in an 11 count indictment, with one violation of Section 220.30 of the Penal Law, a Class D felony and ten violations of the Education Law, all misdemeanors.

This is an omnibus motion by defendant.

1. To inspect the grand jury minutes on the ground that

a. The procedure for making the sale of methaqualone a felony is an unconstitutional delegation of the legislative power

b. The delay between the crime charged and the date of the indictment violated defendant's right to a prompt and speedy trial.

2. For a hearing to suppress telephone recordings made between defendant and others

3. To controvert the search warrant

4. For an order directing the Destrict Attorneyn to turn over certain papers including transcripts of telephonic recording between defendant and others.

5. For an order directing the District Attorney to supply a Bill of Particulars

The District Attorney has agreed to supply the defendant with transcripts of the recorded items and has supplied all the particulars requested except the names of the person or persons to whom the illegal sales of drugs were allegedly made. This decision will therefore deal with the remaining requests.

The first part of defendant's motion to inspect the grand jury minutes is addressed to the fact that the first count of the indictment charges a felony, violation of Penal Law, Section 220.30; which crime he claims was created as a result of the unconstitutional delegation of a legislative function to the State Commissioner of Health. In addition, the defendant claims that he cannot be held for a felony because he was unaware that the offense with which he was charged, which to his knowledge had been a misdemeanor, had become a felony.

The particular statute that defendant challenges is Public Health Law, Sec. 3372 which provides:

'The commissioner is hereby authorized and empowered to make any rules, regulations and determinations which in his judgment may be necessary or proper to supplement the provisions of this article to effectuate the purposes and intent thereof or to clarify its provisions so as to provide the procedure or details to secure effective and proper enforcement of its provisions.'

On February 8, 1973 the Commissioner issued an order adding methaqualone to the list of controlled drugs. That order became effective when filed with the Secretary of State on February 9, 1973. Defendant is charged with the illegal sale of methaqualone on or about March 1, 1973. Prior to the listing of methaqualone as a controlled drug, its sale without a prescription was a misdemeanor violation of the Education Law. Defendant claims that the delegation to the Commissioner of the power to add drugs to the controlled drug list is an illegal delegation of the legislative power because it empowers the Commissioner to create new crimes. I note that as of April 1, 1973, the old Article 33 of the Public Health Law was repealed and a new Article 33 went into effect. However that has no bearing on the issues on this motion.

In order to determine the significance of Section 3372 of the Public Health Law it must be read in conjunction with the other statutes applicable to the crime charged in this case.

Defendant is charged with violation of Section 220.30 of the Penal Law which provides:

'A person is guilty of criminally selling a dangerous drug in the fourth degree when he knowingly and unlawfully sells a dangerous drug.'

Section 220.00(4) of the Penal Law defines a dangerous drug as 'any narcotic drug, depressant or stimulant drug, or hallucinogenic drug.' Section 3371(1) of the Public Health Law defines 'depressant or stimulant drugs', setting forth the qualities the Commissioner must find present before he can classify the drug pursuant to the authority vested in him by Section 3372 of the Public Health Law. He merely tests a substance for those qualities, a purely ministerial act.

Legislative enactments are presumed valid and the burden is upon the person attacking such validity to demonstrate it beyond a reasonable doubt (Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539; People v. Perez, 56 Misc.2d 424, 289 N.Y.S.2d 450). Not only has defendant failed to meet this burden but the interrelation of the statutes is an examply of the correct method of delegation of legislative functions.

Article 3, Section 1 of the Constitution of New York State provides that 'The legislative power of this State shall be vested in the Senate and Assembly.' While inherently legislative powers may not be delegated, 'there is a large field in which the legislature . . . 'may certainly delegate to others powers which the legislature may rightfully exercise itself" (Vil. of Saratoga Spgs. v. Saratoga G., etc. Co., 191 N.Y. 123, 83 N.E. 693). The legislature may authorize a subordinate body to administer and execute its law 'provided a reasonably clear standard is formulated to govern the exercise of discretion by the subordinate body (Packer Coll. Inst. v. University of State of N.Y., 298 N.Y. 184, 81 N.E.2d 80)' (People v. Carmichael, 56 Misc.2d 388, 391, 288 N.Y.S.2d 931, 936). In delegating a legislative power, it is incumbent upon the legislature to lay down

"an intelligible principle', specifying the standards or guides in as detailed a fashion as is reasonably practicable in the light of the complexities of the particular area to be regulated' (City of Utica v. Water Pollution Control Bd., 5 N.Y.2d 164, 169, 182 N.Y.S.2d 584, 587, 156 N.E.2d 301, 304).

It is a peculiarly legislative power to define and declare crimes and public offenses but the legislature may delegate the power to make reasonable rules and regulations to an administrator or administrative agency (People v. Grant, 242 App.Div. 310, 275 N.Y.S. 74). The legislature may not delegate the authority to create a crime and prescribe the penalties therefore (People v. Ryan, 267 N.Y. 133, 195 N.E. 822).

In this case the legislature declared the crime and its punishment (Penal Law Section 220.30), defined the material elements of the crime (Penal Law Section 220.00) and then delegated the authority within strict guidelines and standards (Public Health Law Section 3371(1)) to the Commissioner of Health to add or subtract from the list of controlled drugs (Public Health Law Section 3372). There is nothing vague or unconstitutional about Public Health Law Section 3372 (See: United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 for discussion of vagueness). The remainder of the statutes discussed hereinabove also fit into the framework of the proper exercise of legislative function (See: People v. Ricci, 59 Misc.2d 259, 298 N.Y.S.2d 637).

Defendant was not entitled to notice of the Commissioner's addition of methanqualone to the controlled drug list making its sale without a prescription a felony. Section 15.20(2) of the Penal Law provides in pertinent part that:

'A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense . . .'

An offense is any conduct for which one may be sentenced to a term of imprisonment or to a fine as provided by any law of the state, or by a rule or regulation of any governmental instrumentality lawfully authorized to adopt such rule or regulation (Penal Law Section 10.00(1)). The sale of methaqualone without a prescription was a misdemeanor violation of the Education Law, prior to the order of the Commissioner and was therefore an offense. The mere fact of change in gravity of the offense does not constitute a defense of lack of knowledge or intention to commit the crime. (Penal Law Section 15.20; See, also: Richardson, Evidence (8th ed.) Section 82).

The second part of defendant's motion to inspect the Grand Jury minutes is addressed to the fact that there was an unjustified delay between the time of the crimes charged in Counts 4 to 11 and the indictment and arrest of the defendant.

A mere delay in time between the commission of a crime and the indictment and arrest therefor is not a constitutional violation (People v. London, 36 A.D.2d 980, 320 N.Y.S.2d 810). The primary safeguard against an excessive delay is the statute of limitations (United States v. Feinberg, 2 Cir., 383 F.2d 60). However, where a delay impairs the capacity of the accused to prepare his defense the effect of the delay may acquire constitutional dimensions (Godfrey v. United States, 123 U.S.App.D.C. 219, 358 F.2d 850; Ross v. United States, 121 U.S.App.D.C. 233, 349 F.ed 210). Nevertheless, a mere allegation of prejudice by defense counsel does not compel a hearing on the prejudicial effect of the delay nor is it conclusive on the issue (People v. London, supra). It is incumbent upon the defendant to show prejudice (cf. People v. White, 2 N.Y.2d 220, 159 N.Y.S.2d 168, 140 N.E.2d 258, app. dsmd. 353 U.S. 969, 77 S.Ct. 1061, 1 L.Ed.2d 1133; People v. Abbatiello, 30 A.D.2d 11, 289 N.Y.S.2d 287) and the defendant has failed to do so in this case.

That part of defendant's motion to suppress the telephonic conversation between the informant and one Stanley Einhorn and overheard by the police is denied. The overheard conversation is not an 'intercepted communication' within either of the definitions set forth in CPL Section 700.05(3) because the conversation was overheard with the consent of the sender of the communication. No eavesdropping warrant was necessary and the action of overhearing is not proscribed by statute. It is therefore irrelevant, for purposes of this...