People v. Festo

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore SANDLER; All concur except CARRO
Citation463 N.Y.S.2d 444,96 A.D.2d 765
Decision Date02 June 1983
PartiesThe PEOPLE of the State of New York, Respondent, v. Michael FESTO, Defendant-Appellant.

Page 444

463 N.Y.S.2d 444
96 A.D.2d 765
The PEOPLE of the State of New York, Respondent,
v.
Michael FESTO, Defendant-Appellant.
Supreme Court, Appellate Division,
First Department.
June 2, 1983.

D.K. Grobman, New York City, for respondent.

E. Nunez, New York City, for defendant-appellant.

Before SANDLER, J.P., and SULLIVAN, CARRO, SILVERMAN and BLOOM, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County rendered December 15, 1981, convicting defendant after trial by jury of Criminal Sale of a Controlled Substance in the First Degree, Conspiracy in the Second Degree and Criminal Use of Drug Paraphernalia in the Second Degree and sentencing defendant to various terms of imprisonment, affirmed.

We differ from our dissenting brother on the question of sentence. We hold that the then mandatory sentence of 15 to life imposed for the conviction of Criminal Sale of a Controlled Substance in the First Degree was required by law. The proof, although circumstantial, was sufficient to establish defendant's accessorial liability with respect to the drug selling operation conducted by defendant's co-defendant Luis Calderon. Like our dissenting brother, we are troubled by the draconian sentence. Yet, we cannot, in good conscience, say that this is the rare case which on its particular facts may lead to the opinion that the sentencing statute has been unconstitutionally applied (People v. Broadie, 37 N.Y.2d 100, 119, 371

Page 445

N.Y.S.2d 471, 332 N.E.2d 338; cf. People v. Jones, 39 N.Y.2d 694, 385 N.Y.S.2d 525, 350 N.E.2d 913).

While the proof lends itself to the conclusion that defendant, who controlled entrance into the Calderon apartment, was greeter, receptionist, general factotum and bodyguard for Calderon, there is no reasonable doubt that his function was to "protect" the operation by excluding those who might seek to disrupt it. Thus, while he was, in the eyes of the law, an accessory to the crime and is equally guilty, his participation in the criminal activity was markedly less than that of Calderon, the principal actor.

In reviewing a sentence "court does not pass on the wisdom of the Legislature's acts. It holds only that, because of the Legislature's rational view of the gravity of the offenses, the danger posed by the offenders, and the penological purposes to be served, the punishment imposed for these crimes in the present state of man's knowledge was not grossly disproportionate or cruel and unusual in the constitutional sense" (People v. Broadie, supra, 37 N.Y.2d 100, 118-119, 371 N.Y.S.2d 471, 332 N.E.2d 338). In these circumstances we cannot say that the sentencing statute was unconstitutionally applied (People v. Broadie, supra, 37 N.Y.2d 100, 119, 371 N.Y.S.2d 471, 332 N.E.2d 338; see however, dissenting opinion of Breitel, Ch., J., in People v. Jones, supra, 39 N.Y.2d 694, 698-702, 385 N.Y.S.2d 525, 350 N.E.2d 913).

We are not unaware of the general rule that where a statute reduces the punishment which may be imposed for a crime committed before the statute was enacted but for which sentence is imposed after the statutory amelioration, the ameliorative statute, ordinarily vests the court with the discretionary power to impose the lesser punishment provided by the new law. (People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197). The reduction of the punishment distinguishes it from an ex post facto law which is constitutionally barred and which either increases the punishment for a crime committed before the statute was enacted or makes criminal an act committed before its enactment (People v. Oliver, supra, 1 N.Y.2d 152, 158, 151 N.Y.S.2d 367, 134 N.E.2d 197).

Were we free to apply that rule in this case we might well be inclined to do so for Chapter 410 of the Laws of 1979 reduced the crime committed by defendant to criminal sale of a controlled substance in the second degree. The statute became effective after the defendant had committed the crime and after he had been arrested and indicted, but before he had been tried, convicted and sentenced. However § 29 of Chapter 410 provides:

"Except as provided in section three of this act, the provisions of this act do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this act, or the construction and application of any defense to a prosecution for such an offense. Such an offense must be construed and punished according to the provision of law existing at the time of the commission thereof in the same manner as if this act had not been enacted." (emphasis supplied).

Thus, we are specifically enjoined by law from imposing the lesser sentence permitted by the amended statute.

Moreover, we take occasion to note that the statute did much more than simply alter the punishment for the crime. It redefined the crime by increasing the weight of the narcotic drug sold necessary to constitute the sale an A1 Felony. That Oliver did not intend to cover such a case is evident from the footnote (fn. 3, 1 N.Y.2d 152, 161, 151 N.Y.S.2d 367, 134 N.E.2d 197), which mentions the matter.

In holding as we do we are moved by no less a sense of compassion than motivates our dissenting brother. We note that defendant's prior record, although not a perfect one is not particularly bad. Under the circumstances we deem it appropriate to call the attention of the Governor, with whom lies the power "to grant reprieves, commutations and pardons after conviction,

Page 446

for all offenses except treason and cases of impeachment" (N.Y. State Constitution, Article 4, § 4) to the situation with the recommendation that he take such action as may be appropriate.

All concur except CARRO, J., who dissents in a memorandum as follows:

Appellant stands convicted under P.L. 220.43, as enacted in 1973 (and amended in 1975 and 1977), i.e., he "knowingly and unlawfully" participated in the sale of more than one ounce of a narcotic drug. Festo's crime occurred in June of 1979 and involved 1.975 ounces of cocaine.

Up until September 1, 1979, the unlawful sale of one or more ounces of a narcotic drug constituted the crime of criminal sale of a controlled substance (CSCS) in the first degree (P.L. 220.43), a class A-I felony, punishable by at least fifteen years to life (P.L. 70.00 ). By amendment effective September 1, 1979 however, defendant's act would only sustain conviction for criminal sale of a controlled substance in the second degree (P.L. 220.41), two or more ounces now being required for a first degree prosecution. (Laws of 1979, ch. 410, eff. Sept. 1, 1979). CSCS second degree is an A-II felony with a minimum of three years to life, and a maximum of 8 1/3 to life (at least 6 to life and at most 12 1/2 to life for a second felony, P.L. 70.06). Festo has a prior felony conviction from 1976, attempted criminal possession of a weapon in the third degree.

Festo was indicted August 1, 1979 but did not come to trial until 1981. Thus he was appropriately tried, convicted and sentenced under the law as it existed at the time he was indicted. However, he should have been immediately resentenced as if convicted of an A-II felony--in his case, to six years to life as a second felony offender. In general,

The rule laid down seems to be that a statute, enacted subsequent to the offenses that increases the punishment, does not govern the punishment but rather the law at the time of commission. The opposite is true if the new enactment reduces the punishment.

People v. McGowan, 199 Misc. 1, 3, 104 N.Y.S.2d 652 (County Court, Cattarangus Cnty 1951). Said more straightforwardly, "statute reducing punishment for a crime may apply to a crime committed before the enactment of such statute. (People ex rel. Pincus v. Adams, 274 N.Y. 447 People v. Spagnolia, 260 App.Div. 551, 552, 23 N.Y.S.2d 966 (4th Dept.1940) (Per Curiam).

In Pincus, the relator sued to challenge the application of new laws, one of which allowed cummulative sentences to be imposed concurrently. Judge Finch, writing for the Court, reasoned that since the new statute "enables the court to impose a lesser sentence than was permissible under the law prior to its amendment," its application to relator was constitutional and proper. (274 N.Y. at 457, 9 N.E.2d 46). 1

Pincus is the forerunner of a principle in New York jurisprudence that is now firmly embedded, if not always followed. As alluded to in the footnote, its development has been strongly connected to judicial deference to the ex post facto clause. Thus, in 1932, Judge Lehman cited to Hartung v.

Page 447

People, supra, rather than Pincus when he wrote that "the absence of a clause excluding from its provisions offenses previously committed, the law as amended applies in all trials held thereafter, even for offenses previously committed." People v. Roper, 259 N.Y. 170, 180, 181 N.E. 88 (1932). Contra, People ex rel. Kammerer v. Brophy, 255 App.Div. 821, 7 N.Y.S.2d 34 (4th Dept.1938) ("the relator was properly sentenced under the law in force at the time the crime was committed and the indictment was found."); affirmed without opinion 280 N.Y. 280, 618, 20 N.E.2d 1006; but see People v. Spagnolia, supra, 260 App.Div. 551, 23 N.Y.S.2d 966 (4th Dept.1940).

In this unsettled state the law remained until 1956, when (then) Judge Fuld gave, in depth, an analysis of why,

indeed, where an ameliorative statute takes the form of a reduction of punishment for a particular crime, the law is settled that the lesser penalty may be meted out in all cases decided after the effective date of the enactment even though the underlying act may have been committed before that date. (Penal Law, § 38; see People v. Roper, supra, 259, N.Y. 635 People v. Hayes, supra, 140 N.Y. 484 People ex rel Pincus v. Adams, supra, 274 N.Y. 447, 457 People v. Spagnolia, 260 App.Div. 551 see, also, 1 Sutherland, op. cit. § 2048, pp. 534-535; 1 Wharton, op. cit. § 42, p. 59.)

People v. Oliver, 1 N.Y.2d 152...

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9 practice notes
  • People v. Schultz, Docket Nos. 84788
    • United States
    • Michigan Supreme Court
    • 28 Septiembre 1990
    ...State v. Coolidge, 282 N.W.2d 511 (Minn, 1979); People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197 (1956); People v. Festo, 96 A.D.2d 765, 463 N.Y.S.2d 444 17 1989 P.A. 143, amending M.C.L. Sec. 333.7401(4); M.S.A. Sec. 14.15(7401)(4) and M.C.L. Sec. 333.7403(3); M.S.A. Sec. 1......
  • People v. Sandobar
    • United States
    • New York Supreme Court Appellate Division
    • 25 Marzo 1993
    ...Tention, 162 A.D.2d 355, 556 N.Y.S.2d 914, lv. denied, 76 N.Y.2d 991, 563 N.Y.S.2d 780, 565 N.E.2d 529), and bodyguards (People v. Festo, 96 A.D.2d 765, 463 N.Y.S.2d 444, affd., 60 N.Y.2d 809, 469 N.Y.S.2d 699, 457 N.E.2d 806), especially when they possess keys to premises where drugs are f......
  • People v. Claytor
    • United States
    • New York Supreme Court Appellate Division
    • 22 Febrero 1988
    ...893, 429 N.E.2d 400). The sentence imposed upon the defendant, which was the minimum possible under the statute ( see, People v. Festo, 96 A.D.2d 765, 463 N.Y.S.2d 444, affd. 60 N.Y.2d 809, 469 N.Y.S.2d 699, 457 N.E.2d 806), does not constitute cruel and unusual punishment ( see, People v. ......
  • People v. Terrell
    • United States
    • New York Supreme Court Appellate Division
    • 2 Mayo 1985
    ...decision was not supportable by retroactive application of the narcotics laws revisions redefining Class A-I felonies. (People v. Festo, 96 A.D.2d 765, 463 N.Y.S.2d 444, aff'd 60 N.Y.2d 809, 469 N.Y.S.2d 699, 457 N.E.2d 806). Instead, the court concluded that the present situation constitut......
  • Request a trial to view additional results
9 cases
  • People v. Schultz, Docket Nos. 84788
    • United States
    • Michigan Supreme Court
    • 28 Septiembre 1990
    ...State v. Coolidge, 282 N.W.2d 511 (Minn, 1979); People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197 (1956); People v. Festo, 96 A.D.2d 765, 463 N.Y.S.2d 444 17 1989 P.A. 143, amending M.C.L. Sec. 333.7401(4); M.S.A. Sec. 14.15(7401)(4) and M.C.L. Sec. 333.7403(3); M.S.A. Sec. 1......
  • People v. Sandobar
    • United States
    • New York Supreme Court Appellate Division
    • 25 Marzo 1993
    ...Tention, 162 A.D.2d 355, 556 N.Y.S.2d 914, lv. denied, 76 N.Y.2d 991, 563 N.Y.S.2d 780, 565 N.E.2d 529), and bodyguards (People v. Festo, 96 A.D.2d 765, 463 N.Y.S.2d 444, affd., 60 N.Y.2d 809, 469 N.Y.S.2d 699, 457 N.E.2d 806), especially when they possess keys to premises where drugs are f......
  • People v. Claytor
    • United States
    • New York Supreme Court Appellate Division
    • 22 Febrero 1988
    ...893, 429 N.E.2d 400). The sentence imposed upon the defendant, which was the minimum possible under the statute ( see, People v. Festo, 96 A.D.2d 765, 463 N.Y.S.2d 444, affd. 60 N.Y.2d 809, 469 N.Y.S.2d 699, 457 N.E.2d 806), does not constitute cruel and unusual punishment ( see, People v. ......
  • People v. Terrell
    • United States
    • New York Supreme Court Appellate Division
    • 2 Mayo 1985
    ...decision was not supportable by retroactive application of the narcotics laws revisions redefining Class A-I felonies. (People v. Festo, 96 A.D.2d 765, 463 N.Y.S.2d 444, aff'd 60 N.Y.2d 809, 469 N.Y.S.2d 699, 457 N.E.2d 806). Instead, the court concluded that the present situation constitut......
  • Request a trial to view additional results

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