People v. Izsak

• Decision Date: 21 May 1979
• Parties: The PEOPLE of the State of New York v. Andrei IZSAK, Defendant. The PEOPLE of the State of New York v. Franklin SHEYDWASSER, Defendant. The PEOPLE of the State of New York v. Edward LOGAN, Defendant. The PEOPLE of the State of New York v. Marvin MARCUS, Defendant. The PEOPLE of the State of New York v. Rudolf GRAYER, Defendant.
• Court: New York City Court

Page 1004

416 N.Y.S.2d 1004

99 Misc.2d 543

The PEOPLE of the State of New York v. Andrei IZSAK, Defendant.

The PEOPLE of the State of New York v. Franklin SHEYDWASSER, Defendant.

The PEOPLE of the State of New York v. Edward LOGAN, Defendant.

The PEOPLE of the State of New York v. Marvin MARCUS, Defendant.

The PEOPLE of the State of New York v. Rudolf GRAYER, Defendant.

Criminal Court of the City of New York, New York County.

May 21, 1979.

Robert M. Morgenthau, Dist. Atty., New York County (Trevor Reid, Robin J. Arzt, Robert Seewald, Jeffrey Schlanger, New York City, of counsel), for the People.

Philip Kovitz, New York City, for defendant Izsak.

Joseph S. Domanti, John T. Fitzpatrick, New York City, for defendant Sheydwasser.

Leon Polsky, Legal Aid Society, New York City (James Roth, New York City, of counsel), for defendant Logan.

Floyd J. Kops & Assoc., New York City (Ronald Wiseman, New York City, of counsel), for defendant Marcus.

Jeffrey Traub, New York City, for defendant Grayer.

LUIS M. NECO, Judge:

The above defendants were each, individually, charged with patronizing a prostitute (Penal Law § 230.03). Each defendant has sought relief in the form of dismissal in the interests of justice pursuant to CPL 170.40. The court has sought to combine the motions for the sake of simplicity.

The factual situations are as follows:

Defendant Izsak allegedly patronized a decoy police officer posing as a prostitute. The defendant states he is an alien, married, with a six-year-old child. He claims he was somewhat intoxicated. He is gainfully employed and has allegedly suffered financially due to his court appearances.

Lastly, the defendant claims that by placing him in the most disfavorable light, no great social harm has occurred, while more serious crimes (i. e., assaults, larcenies) are routinely dismissed or adjourned in contemplation of dismissal.

The People contend the defendant has stated no compelling factor, consideration, or circumstance which would justify a dismissal pursuant to CPL 170.40. The People contend that patronizing a prostitute is as serious a crime as prostitution.

Further, they state the defendant has suffered no greater hardship than that of any defendant in a criminal prosecution.

The People also blame the defendant for delays when the case was ready to proceed.

Defendant Sheydwasser is accused of approaching a female police officer (dressed in plain clothes) at 5:45 a. m. on March 30, 1979, and allegedly offering her $20 for sexual intercourse.

The defendant contends he has never been arrested before; the nature of the charge places his marriage in jeopardy; and the court appearances would place his continued employment in peril. He seeks a dismissal in the interests of justice.

The People contend the defendant has not set forth any compelling factors which would justify the court's usage of CPL 170.40 to dispose of the case.

Defendant Logan was arrested on March 8, 1979, and charged with patronizing a prostitute. He is currently unemployed, with no prior arrests. He spent twenty-four hours in custody on the charge.

Again, the People contend no compelling factors have been set forth.

Defendant Marcus states his grounds for dismissal of the motion are no prior criminal record, two days of incarceration, and no just purpose for more punishment.

Defendant Grayer sets forth no prior criminal record; a steady job, which could be lost on conviction; and an excessive penalty for a "victimless crime."

The defendants also contend the policy of the Office of the District Attorney is not to negotiate a plea for the offense of patronizing a prostitute. They allege this policy and the penalties facing them are overly severe and totally disproportionate to the nature of the offense charged.

The court is faced with the issue of whether the arrest of the defendants on the offense of patronizing a prostitute is such that it should be dismissed in the interests of justice.

The State Legislature has recently seen fit to increase the possible punishment of the Existing enactment with a view realistic or not to curb the activity of the "oldest profession" prostitution.

The former statute section 230.05 was a single-offense statute which was classified as a violation, with the maximum sentence of fifteen days (Penal Law § 70.15, subd. 4). Currently, the statutorial scheme provides four classes of offenses ( §§ 230.03, 230.04, 230.05, 230.06) with heightened degrees (to a D felony) as the age of the prostitute drops. The revamping is aimed at curbing childhood prostitution.

Our concern is with section 230.03. It deals with adult prostitutes and carries, as a B misdemeanor, a maximum sentence of three months (Penal Law § 70.15, subd. 2).

The former statute evolved to clear up the problem of enforcing the prostitution phase of the former vagrancy statute (Code Crim.Pro., § 887(4)) against the patron as well as the prostitute. So in 1965, the Legislature enacted section 230.05 (L.1965, ch. 1030, eff. Sept. 1, 1967).

The reasoning behind its enactment was (1) to penalize the prostitute alone was unjust, and (2) this step would aid in curtailing prostitution. (Practice Commentary, § 235.05, McKinney's Cons. Laws, Book 39.)

The latest updating of the offense of patronizing a prostitute equates the penalties for prostitution (Penal Law § 230.00) and for patronizing a prostitute.

Next, we must examine the concept of a dismissal in the interests of justice.

CPL 170.40 states:

"An information . . . may be dismissed in the interest of justice . . . when, even though there may be no basis for dismissal as a matter of law . . . such dismissal is required as a matter of judicial discretion by the existence of Some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." (Emphasis added.)

The court readily concedes the law is at best an imperfect instrument. It is couched in absolute terms. It occasionally snares an individual "who, should he be convicted of an offense would suffer more grievously than justice would require" (People v. Davis, 55 Misc.2d 656, 286 N.Y.S.2d 396).

The court is cognizant of the fact that while dismissal of an information in the interest of justice is entirely discretionary with the court, such discretion is neither absolute nor uncontrolled (see People v. Wingard, 33 N.Y.2d 192, 351 N.Y.S.2d 385, 306 N.E.2d 402; People v. Burke, 79 Misc.2d 46, 359 N.Y.S.2d 397). Indeed, the discretion of the court should be founded only on fully deliberated considerations.

In People v. Clayton, 41 A.D.2d 204, 208, 342 N.Y.S.2d 106, 110, the Appellate Division, Second Department, has set forth the factors to be considered in dismissing a case in the interest of justice. These factors are: (a) the nature of the crime; (b) the available evidence of guilt; (c) the prior record of the defendant; (d) the punishment already suffered by the defendant; (e) the purpose and effect of further punishment; (f) any prejudice resulting to the defendant by the passage of time; and (g) the impact on the public interest of a dismissal of the information. Further, the court stated:

"The sensitive balance between the individual and the State that must be maintained in applying the test of the interests of justice which CPL 210.40 contemplates moves in response to factors largely resting on value judgments of the court."

The guidelines in Clayton serve as a basis for determining a motion to dismiss in the furtherance of justice, and discretion given to the court is great indeed. The instance cases are not those which cry out for "fundamental justice beyond the confines of conventional consideration . . . ." (Judge Fuchsberg in his concurring opinion in People v. Belge, 41 N.Y.2d 60, 62-63, 390 N.Y.S.2d 867, 868, 359 N.E.2d 377, 378.)

The purpose of the discretionary power of the court under CPL 170.40 is to allow, albeit under very limited circumstances, "the letter of the law gracefully and charitably to succumb to the spirit of justice." (People v. Davis, supra, 55 Misc.2d 659, 286 N.Y.S.2d 400.) This court has posed the question as to whether this situation is one which "cries out for fundamental justice beyond the confines of conventional considerations . . . ." (People v. Belge, 41 N.Y.2d 60, 62, 390 N.Y.S.2d 867, 868, 359 N.E.2d 377, 378.) Upon close scrutiny, it must be concluded that it does not.

The defendants are suffering from a socio-legislative shock. Formerly, the "John" was the forgotten individual in a prostitution arrest. Rarely, if ever, was the "John" even arrested. The offense was a violation. Now, the Legislature has seen fit to raise the offense to a class B misdemeanor.

The concept of "red light" districts has been discussed in viable terms. An area similar to the one set up in Boston has been discussed. The crime of prostitution has been discussed in enlightened terms of a "victimless" crime two consenting adults with no one getting hurt.

Others have argued with the term "victimless." They point to pimps abusing their "stable"; young children entering and being forced to enter the "profession"; assaults and robberies perpetrated on Johns by prostitutes and pimps; prostitutes abusing innocent passersby; and excessive, unchecked street prostitution causing neighborhoods and businesses to be adversely affected to the detriment of many.

Obviously, the Legislature feels the crime of prostitution is far from victimless and has sought to punish the customer of the prostitute more severely.

The District Attorney seeks to reinforce the concept that the John is engaging in an illegal activity by strictly enforcing the statute.

The fact that the Legislature has seen fit to upgrade the offense from a violation to a "B" misdemeanor clearly demonstrates that it feels putting greater sanctions on the "John" is one way of stemming the...