People v. Lofton

• Decision Date: 06 March 1975
• Citation: 81 Misc.2d 572,366 N.Y.S.2d 769
• Parties: The PEOPLE of the State of New York v. Gail LOFTON.
• Court: New York Supreme Court

Page 769

366 N.Y.S.2d 769

81 Misc.2d 572

The PEOPLE of the State of New York v. Gail LOFTON.

Supreme Court, Criminal Term, Kings County, Part 5.

March 6, 1975.

Robert J. Lashaw, Brooklyn, for defendant.

Eugene Gold, Dist. Atty. (Joel M. Goldberg, New York City, of counsel), for plaintiff.

MEMORANDUM

ROBERT S. KREINDLER, Justice.

Defendant having pleaded guilty on October 24, 1974 to three counts contained in three indictments which included 2 class A--III felony counts, moves for the following relief:

1. For an order declaring Sec. 65.00 subd. 1 par. (b) of the Penal Law unconstitutional, and

2. For a hearing with respect to the refusal of the District Attorney to recommend lifetime probation.

The District Attorney had refused to recommend that the court sentence defendant to a period of probation upon the ground that she had not been of sufficient material assistance in the investigation, apprehension or prosecution of a person charged with violating a section within Article 220 of the Penal Law (Narcotic violations), and he further did not choose to accept what this defendant had to offer.

The pertinent part of Sec. 65.00 subd. 1 par. (b) provides:

'The court, with the concurrence of either the administrative judge of the court or of the judicial district within which the court is situated or such administrative judge as the presiding justice of the appropriate appellate division shall designate, May sentence a person to a period of probation upon conviction of a class A--III felony If the prosecutor either orally on the record or in a writing filed with the indictment recommends that the court sentence such person to a period of probation upon the ground that such person has or is providing material assistance in the investigation, apprehension or prosecution of any person for a felony defined in article two hundred twenty or the attempt or the conspiracy to commit any such felony, and if the court, having regard to the nature and circumstances of the crime and to the history, character and condition of the defendant is of the opinion that: * * *

'(iii) The defendant has or is providing material assistance in the investigation, apprehension or prosecution of a person for a felony defined in article two hundred twenty or the attempt or conspiracy to commit any such felony; and * * *'

(emphasis supplied).

Defendant contends that the statute is unconstitutional. She claims it violates her right to due process guaranteed by the 14th Amendment and that it is vague and does not sufficiently define what is meant by 'material assistance' so as to inform a person whether his conduct or acts come within its provisions.

Defendant further contends that the statute allows the prosecutor to recommend lifetime probation to some defendants and arbitrarily withhold such recommendation from others, with or without reason. That because of the possibility of varying results in the use of prosecutorial discretion there is a denial of equal protection of the law.

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law (Connolly v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322).

The object of the Legislature in enacting the statute in question was 'to get small fry drug dealers or addicts to cooperate in the apprehension and conviction of bigger trafficker and was intended to be a bargaining lever (Hechtman, Supplementary Practice Commentary, McKinney's Consolidated Laws of New York, Book 39, Penal Law § 65.00, 1974--75, Supplement p. 97; People v. Gardner, 78 Misc.2d 744, 752, 359 N.Y.S.2d 196, 204).

It is well established that criminal statutes are to be strictly construed except that by virtue of express statutory enactment, the Penal Law and all of its provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law (Penal Law § 65.00; McKinney's Consolidated Laws of New York, Book I, Statutes, § 276 (1971)).

The words 'material assistance' must be given their plain and usual meaning. 'Material' is defined as being of real importance or great significance and 'assistance' is defined as help supplied or given. To 'assist' is defined as an act or circumstance that helps to bring about a desired result (Webster's Third New International Dictionary, pp. 132 and 1392 (1969)). Therefore, material assistance, or to materially assist, in the instant case would be to aid to a significant extent in the investigation, apprehension or prosecution of a violator of Article 220 of the Penal Law.

In order to induce the prosecuting authorities to recommend lifetime probation, defendant asserts in her affidavit that she attempted to materially assist in the apprehension of two drug dealers ('set them up') but, through an alleged leak that she was an informer for the police, her efforts proved fruitless.

Defendant's attack upon the constitutionality of Sec. 65.00 of the Penal Law as a denial of equal protection of the law, is without merit. There is no claim, nor do the moving papers show any semblance of invidious discrimination.

Additionally, there is no basis in the record before the court that defendant has been denied equal protection of the law because of possible discriminatory enforcement of the statute. In so arguing, defendant has the burden of demonstrating a 'pattern of discrimination consciously practiced' (People v. Friedman, 302 N.Y. 75, 81, 96 N.E.2d 184, 186; see also Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220). Equal protection of the law means the protection of equal laws (Yick Wo v. Hopkins, supra). It forbids all invidious discrimination but does not require identical treatment for all persons without recognition of differences in relevant circumstances.

In passing upon the challenge as to the constitutionality of Sec. 65.00 subd. 1(b) of the Penal Law, the court takes cognizance of the well-established principle that this statute, like all other legislative enactments, is supported by a strong presumption of validity and, to establish the contrary, the unconstitutionality of this statute must be demonstrated beyond a reasonable doubt (Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 541; People v. Pagnotta,25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202). To satisfy the constitutional requirements of due process, a statute must be sufficiently defined to give a reasonable man subject to it, notice of the nature of what is prohibited and what is required of him (People v. Byron, 17 N.Y.2d 64--67, 268 N.Y.S.2d 24--27, 215 N.E.2d 345--347; Lanzetta v. N.J., 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; People v. Pagnotta, supra). However, a court of original jurisdiction should not set aside a statute as unconstitutional unless that conclusion is inescapable (Bohling v. Corsi, 204 Misc. 778, 127 N.Y.S.2d 591, affd. 306 N.Y. 815, 118 N.E.2d 823; People v. Elkin, 196 Misc. 188, 193; McKinney's Consolidated Laws of New York, Book 1, Statutes, § 150 (1971)). The tendency is to leave such questions to appellate tribunals (In re City of New Rochelle v. Echo Bay Waterfront Corp., 182 Misc. 176, 177, 46 N.Y.S.2d 645, affd. 268 App.Div. 182, 49 N.Y.S.2d 673, affd. 294 N.Y. 678, 60 N.E.2d 838).

The court concludes that Sec. 65.00 subd. 1 par. (b) of the Penal Law is constitutional, is not vague and sufficiently sets forth what is required to procure a recommendation of lifetime probation from a District Attorney upon a plea of guilty that includes an A--III felony count.

With respect to that branch of defendant's motion requesting a hearing, defendant contends that irrespective of the constitutionality of this section, she rendered material assistance; that having rendered material assistance in the investigation of Article 220...