People v. Kepple

• Decision Date: 19 December 1983
• Citation: 98 A.D.2d 783,469 N.Y.S.2d 801
• Parties: The PEOPLE, etc., Respondent, v. Keith KEPPLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 801

469 N.Y.S.2d 801

98 A.D.2d 783

The PEOPLE, etc., Respondent, v. Keith KEPPLE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 19, 1983.

Edward J. Rooney, New City, for appellant.

Kenneth Gribetz, Dist. Atty., New City (James H. Mellion, Asst. Dist. Atty., New City, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, BRACKEN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Rockland County, rendered June 23, 1982, convicting him of burglary in the second degree (Penal Law, § 140.25, subd. 2), upon his plea of guilty, and sentencing him as a prior felony offender.

Judgment affirmed.

The trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea without a hearing (People v. Miller, 42 N.Y.2d 946, 398 N.Y.S.2d 133, 367 N.E.2d 640; People v. Tinsley, 35 N.Y.2d 926, 365 N.Y.S.2d 161, 324 N.E.2d 544; People v. Fridell, 93 A.D.2d 866, 461 N.Y.S.2d 375). Defendant's narrative of the events surrounding the commission of the crime established his guilt of all of the elements of the crime to which he pleaded.

Similarly without merit is defendant's contention that the indictment is jurisdictionally defective. The only defect in the indictment may have been a technical mistake as to the date on which the crime occurred. The indictment stated November 13, 1981 when, in fact, the crime was committed on November 12, 1981. This is not a jurisdictional defect vital to the sufficiency of the indictment or the guilty plea entered thereto (People ex rel. White v. McMann, 8 A.D.2d 921, 187 N.Y.S.2d 199, mot. for lv. to app. den. 7 N.Y.2d 705, 193 N.Y.S.2d 1026, 162 N.E.2d 753; cf. CPL 200.70; People v. Francis, 38 N.Y.2d 150, 379 N.Y.S.2d 21, 341 N.E.2d 540).

Defendant also challenges the constitutionality of the 1981 amendment to section 140.25 (subd. 2) of the Penal Law, which abrogated the distinction between burglaries of dwellings committed during the day and those committed at night, classifying both as class "C" violent felonies (L.1981, ch. 361). He relies on People v. Lewis, 113 Misc.2d 1091, 450 N.Y.S.2d 977, which found the amendment to be violative of due process of law and the Eighth Amendment prohibition against cruel and unusual punishment. We reject Lewis and hold the amendment to be constitutional. ^*

The Legislative determination to classify all burglaries of dwellings as class "C" or higher violent felonies was apparently based upon its assessment that the potential for violence was the same irrespective of the time of their commission (see Sponsor's Memorandum, quoted in Hechtman, Supplementary Practice Commentary, McKinney's Cons.Laws of New York, Book 39, Penal Law, § 140.30, pp. 17-18, 1982-1983 Pocket Part). That determination is entitled to great deference (Rummel v. Estelle, 445 U.S. 263, 274-275, 283-285, 100 S.Ct. 1133, 1139, 1144, 63 L.Ed.2d 382; People v. Broadie, 37 N.Y.2d 100, 117, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. den. 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287) and the Lewis court's observation that it "appears that little thought" was given to the amendment by the Legislature and that a newspaper reported that several legislators indicated that they did not "intend" the result which "was not foreseen" (People v. Lewis, supra, p. 1092, 450 N.Y.S.2d 977), provides no basis for ignoring the plain meaning of statutory language (see Heimbach v. State of New York, 59 N.Y.2d 891, 465 N.Y.S.2d 936, 452 N.E.2d 1264; Matter of Trump-Equitable Fifth Ave. Co. v. Gliedman, 57 N.Y.2d 588, 596, 457 N.Y.S.2d 466, 433 N.E.2d 940; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 N.Y. 60, 67, 127 N.E.2d 808). Judicial review ends when, as here, it is determined that there is a rational basis for the legislative distinction (People v. Drayton, 39 N.Y.2d 580, 385 N.Y.S.2d 1, 350 N.E.2d 377; People v. Elliby, 80 A.D.2d 875, 436 N.Y.S.2d 784, mot. for lv. to app. den. 53 N.Y.2d 942, 440 N.Y.S.2d 1041, 423 N.E.2d 407; People v. Caver, 74 A.D.2d 852, 425 N.Y.S.2d 381).

That a mandatory sentence will be imposed is irrelevant. Mandatory sentencing schemes have long been deemed constitutional (Rummel v. Estelle, supra ), and the imposition of such a sentence in this case is in no sense violative of the Eighth Amendment (Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556; Rummel v. Estelle, supra; People v....