People v. Gardner

• Decision Date: 06 September 1974
• Parties: The PEOPLE of the State of New York v. Skip GARDNER, also known as Sylvester Gardner, Defendant.
• Court: New York Supreme Court

Page 196

359 N.Y.S.2d 196

78 Misc.2d 744

The PEOPLE of the State of New York v. Skip GARDNER, also known as Sylvester Gardner, Defendant.

Supreme Court, Criminal Term, Westchester County, Part II.

Sept. 6, 1974.

Stephen J. Pittari, White Plains (Robert W. Stieve, New York City, and Donald N. Silverman, of counsel), for defendant.

Carl A. Vergari, Dist. Atty. (Tony B. Berk, Hartsdale, of counsel), for plaintiff.

Louis J. Lefkowitz, Atty. Gen. (Barbara Shore Resnicoff, of counsel), intervenor pro se.

JOSEPH D. QUINN, Jr., Justice.

Defendant has been indicted on two counts of criminal sale of a controlled substance in the third degree, in violation of § 220.39(1) of the Penal Law, and on two counts of criminal possession of a controlled substance in the third degree, in violation of § 220.16(1) of the Penal Law. The indictment charges that the first two sale and possession offenses were committed on October 18, 1973, and that the second pair were committed on the 23rd day of October, 1973. It is claimed in that pleading that the narcotic drug involved in each instance was heroin. Under the revised drug laws which became effective on September 1, 1973, each of the crimes charged is classified as an A--III felony, punishable by an indeterminate term of imprisonment, the minimum period of which, for a first offender, is from one to eight and one-third years, and the maximum of which is life imprisonment.

Earlier in this action, defendant brought on an omnibus motion seeking varied relief. In the second branch of that application he demanded dismissal of the indictment on constitutional grounds. In an order made on July 15, 1974, this court held determination of that branch in abeyance, directing, sua sponte, that the Attorney General be first brought in under the provisions of § 71 of the Executive Law to defend the constitutionality of the several sections of the Penal Law and the Criminal Procedure Law which had come under attack. (Cf. People v. Gardner, N.Y.L.J., 7/19/74, p. 14, c. 1.) In the interim, the Attorney General has intervened, the constitutional questions presented here have been briefed and argued, and the remaining branches of the motion have been decided.

As has been indicated in the preliminary order entered in this action, defendant has assailed the validity of §§ 65.00(1)(b), 220.16(1) and 220.39(1) of the Penal Law and § 220.10(6)(a) of the Criminal Procedure Law, as those sections apply to him, upon the grounds that they do violence to his due process and equal protection rights and that they are inconsistent with the prohibition against cruel and unusual punishment under the Federal and New York Constitutions. In the briefs for defendant and on oral argument these claims were broadened to include a facial attack on the sections. This is of no great moment. The court will consider the issues relating to the constitutionality of the protested sections both facially and in their application to defendant.

In addressing the task of passing upon the constitutionality of those areas of New York's drug laws which were enacted in 1973 and which are challenged here, it is logical that defendant's contention regarding the invalidity of §§ 220.16(1) and 220.39(1) of the Penal Law be examined first.

Section 220.16(1) provides that '(a) person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses * * * a narcotic drug with intent to sell it * * *.' This section and subdivision cover knowing and unlawful possession, with intent to sell, of any quantity of a narcotic or 'hard' drug. The heroin referred to in the possession, as well as the sale counts of the indictment falls into the narcotic or 'hard' drug category. (Cf. Penal Law § 220.00(5) and (7).) This same section grades the described offense as an A--III felony for punishment purposes.

In similar fashion, section 220.39(1) of the Penal Law prescribes that '(a) person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells * * * a narcotic drug * * *.' Like the first quoted section and subdivision, § 220.39(1) covers a sale of any quantity of a narcotic drug. And the gradation of the sale offense is also put at the A--III felony level.

In the statutory sentencing scheme, these A--III felonies, as has been previously indicated, generally carry with them an indeterminate prison term with a range of one year to eight and one-third years as a minimum and with a mandatory maximum of life (Penal Law, §§ 55.00, 60.05(1) and 70.00(1), (2)(a) and (3)(a)(iii)), except where a lifetime probationary sentence may be imposed (Penal Law, § 65.00(1)(b) and (3)(a)(ii)).

The gist of defendant's cruel and unusual punishment claim is that the penalty which has been legislatively imposed and must be judicially imposed, if there is a conviction, is too harsh for the alleged crimes. He contends that when, in 1973, the Legislature, in an effort to come to grips with the threat which the drug problem admittedly poses to society, incorporated such 'nonviolent' sale and possession offenses, involving, as at bar, narcotic drugs in Any quantity, regardless of the amount or value thereof, within the Class A felony scheme, and ranked them, insofar as mandatory maximum life imprisonment is concerned, with the most serious crimes known under New York Law, i.e., murder, attempted murder of a police officer, first degree kidnapping, and arson in the first degree, it exceeded its constitutional limitations and imposed a punishment which is excessive and disproportionate to the seriousness of the offenses to which it applies.

In this vein, defendant argues that, if he were to have been accused of the commission of any of such crimes of violence or threatened violence as second degree arson, first degree burglary, criminal mischief in the first degree, second degree kidnapping, manslaughter, or first degree rape, robbery or sodomy, he could except to receive a maximum sentence of imprisonment of twenty-five years, if convicted.

By way of contrast, he says that none of '(h)is alleged offenses involved violence or danger of violence towards persons or property.' He argues that the quantities of heroin involved here are minute (.006 and .007 ounces respectively) and that the entire amount of his gain from each of the transactions with which he is charged was $60.00.

He says that he is an indigent, uneducated '(b)lack man who has known nothing but poverty all his life * * *' and that the illicit drug problem '(i)s not the result of one man selling a minute quantity of heroin the another', but that '(i)t is the result of a phenomenon which has evolved in this country involving many thousands of persons.' He concludes that there is no compelling reason or rational basis for the State to prescribe an indeterminate sentence of life imprisonment as punishment for any individual who stands accused as he does under the circumstances which obtain in his case, and to allow persons who are convicted of the rape or robbery type of offenses to receive more compassionate sentences.

Defendant suggests '(t)hat the drug problem in no way compares to that of corruption of power in high political office', and observes that '(w)hen persons conviced of those crimes (of corruption of power) are sentenced it is sometimes for a few years and more often to even lesser terms in minimum security institutions, such as prison farms. More often yet * * * a suspended sentence is imposed.'

In their briefs and on oral argument, defendant's attorneys say that they do not '(i)n any manner attempt to minimize what effect drug abuse has had on our society' and that they do not '(t)ake issue with * * * Governor (Rockefeller's) or (the) Legislature's perception of our society's drug problems or with their right to approve (sic) legislation (which) they feel will solve those problems.'

Further, defense counsel say that they neither challenge '(t)he system of indeterminate sentencing nor * * * (ask) that life sentences be found unconstitutional Per se.' Nor do they fault the minimum sentence which defendant faces if convicted in this action.

Their chief complaint, rather, is with the comparative gravity ascribed by the Legislature to the offenses charged here and with the severity of penalty fixed therefor.

It is well settled that the Eighth Amendment's guarantee against cruel and unusual punishments is made applicable against the States through the due process clause of the Fourteenth Amendment of the United State Constitution. (Furman v. Georgia, 408 U.S. 238, 241, 309, 92 S.Ct. 2726, 33 L.Ed.2d 346.) Moreover, '(s)ince adoption of the Federal Constitution, similar proscriptions have been written into virtually every State Constitution, our own in 1846. (N.Y.Const. of 1846, art. I, § 5; see People ex rel. Kemmler v. Durston, 119 N.Y. 569, 576, 24 N.E. 6, 7.)' (People v. Davis, 33 N.Y.2d 221, 225--226, 351 N.Y.S.2d 663, 666, 306 N.E.2d 787, 789.)

In his concurring opinion in Furman v. Georgia, supra, 408 U.S. at p. 282, 92 S.Ct. at p. 2748, Mr. Justice Brennan spoke of the interrelated principles, which, when applied in combination, provide a means by which a court can determine whether a challenged punishment comports with the concept of human dignity which is the core of the Eighth Amendment. Formulating a cumulative test, he stated that '(i)f 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.'

This court is of the view that, when subjected to this test, sections 220.16(1...