People v. Marchese

• Decision Date: 25 January 1994
• Parties: The PEOPLE of the State of N.Y., Plaintiff, v. Anthony MARCHESE, Defendant.
• Court: New York Supreme Court

Page 776

608 N.Y.S.2d 776

160 Misc.2d 212

The PEOPLE of the State of N.Y., Plaintiff, v. Anthony MARCHESE, Defendant.

Supreme Court, Bronx County,

Criminal Division, Part 58.

Jan. 25, 1994.

Robert T. Johnson, Dist. Atty. of Bronx County, Deval Patel, Asst. Dist. Atty., for the People.

Raymond Loving of Legal Aid Society, New York City, for defendant.

JOSEPH FISCH, Justice.

Defendant was convicted after a jury trial, at which he testified, of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Fourth Degree. In response to the defendant's pre-sentence memorandum requesting leniency in sentencing, the District Attorney's Office, citing United States v. Dunnigan, 507 U.S. ----, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), contends that the defendant should receive an "enhanced sentence", i.e., a higher sentence than the Court would otherwise impose based upon his alleged perjury at trial. The People claim this perjury is established by the contradictions between defendant's trial testimony concerning his drug addiction and his statements about his addictions to the social workers of the Legal Aid Society in the pre-sentence memorandum submitted to the Court on his behalf. In Dunnigan, supra, the United States Supreme Court affirmed a trial court's imposition of an enhanced sentence based on the federal court's finding that the defendant perjured himself at trial, citing an earlier precedent: United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978).

In United States v. Grayson, supra, the United States Supreme Court held that it was not a denial of due process for a sentencing judge to consider a defendant's perjury which that judge observed during the trial when imposing a sentence within statutory limits, although there was no specific legislative authority for enhancement.

In the Grayson case, the inmate Grayson escaped from Federal prison and was apprehended two days later by FBI agents in New York City.

Grayson testified in his own defense, in his prosecution for prison escape, claiming that he left the prison camp because his life was threatened by an inmate named Barnes. The Government rebutted Grayson's defense by calling Barnes (no longer an inmate), as well as a prison captain, who contradicted Grayson's trial testimony that he had reported threats by an inmate. Grayson also testified that after crossing the prison fence he left his prison jacket and prison shirt by the side of the road, but not his trousers. Government testimony showed that on the morning after his escape, a shirt marked with Grayson's number, a jacket, and a pair of prison trousers were found outside a hole in the prison fence. As the United States Supreme Court noted in Grayson, supra at 43, 98 S.Ct. at 2611-12 (footnote 1) "Grayson stated that unpremeditatedly fleeing the prison with no possessions and crossing the fence, he hitchhiked to New York City--a difficult task for a man with no trousers. The United States suggested that by pre-arrangement Grayson met someone, possibly a woman friend, on the highway near the break in the fence and that this accomplice provided civilian clothes." In addition, the Government's proof included the testimony of two FBI agents that when Grayson was arrested, he denied his true identity. The lower court in imposing sentence stated that it was seeking to deter Grayson and others similarly situated from committing perjury at trial. The Court characterized Grayson's defense as " 'a complete fabrication without the slightest merit whatsoever' ", and stated: " 'I feel it is proper for me to consider that fact in the sentencing, and I will do so.' " United States v. Grayson, supra at 44, 98 S.Ct. at 2612. Accordingly, the District Court imposed an enhanced sentence under the Federal indeterminate sentencing statutes then in effect, although such enhancement was not specifically prescribed. A divided Court of Appeals for the Third Circuit vacated and remanded for resentencing; two judges found the sentence enhancement an abuse of discretion and one judge in a concurring opinion stated that such enhancement impermissibly chilled the constitutional right to testify and violated due process of law. The United States Supreme Court granted certiorari and reversed, reinstating the sentence of the District Court. In so holding, the Court stated that it was reaffirming the authority of the sentencing judge to consider a defendant's willful and material falsehoods in his trial testimony, and to "assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society". United States v. Grayson, supra, at 55, 98 S.Ct. at 2618.

In the case at bar, defendant denied selling drugs. He took the stand and testified that he observed a man, similar to him in dress and height, participate in a drug sale shortly before he was apprehended. He also testified that he was a heroin addict, claiming such addiction was caused by his use of painkillers in Vietnam and Germany to alleviate pain from a service related injury. The pre-sentence memorandum submitted on his behalf noted that his addiction to illegal drugs began in the United States after he was discharged from the service. The People contend that although the particular discrepancy concerning his addiction was not directly relevant to the charges, such testimony concerning his Vietnam service was strategically relevant to the goal of eliciting jury sympathy.

The People further argue that this falsehood, coupled with defendant's false testimony claiming innocence of the charges for which he stood trial and was convicted, constitute willful and materially false statements, i.e., perjury, that may be considered by this Court in assessing the defendant's history and character to determine an appropriate sentence.

Defense counsel contends that this Court should find such consideration irrelevant. Defense concedes that the majority of reported state jurisdictions permit consideration of a defendant's trial perjury as a factor in enhancing sentence on the ground that it evidences lack of potential for rehabilitation. Although some twenty-one states, ¹ relying on Grayson, 438 U.S. 41, supra, have held that a sentencing court may permissibly consider a defendant's perjury as relevant to the prospect of his rehabilitation, in accordance with specified safeguards, the defense urges this Court to adopt the view of three states (Louisiana, Massachusetts and North Carolina) which have held such consideration in imposing sentence to be improper. ² One state, Florida ³, has, as of this writing, a conflict in the case law.

The issue of sentence enhancement based on perjury has generally arisen in the state courts both in the context of state indeterminate and determinate sentencing statutes. The determinate statutes prescribe a definite sentence but permit upward or downward departure based on the sentencing judge's determination of aggravating and/or mitigating factors. The state courts which permit sentence enhancement for perjury under these determinate sentencing statutes have held that the perjury is an aggravating factor, although not specifically so designated in the statute. ⁴ Defense counsel relies on the fact that United States v. Dunnigan, 507 U.S. ----, 113 S.Ct. 1111, supra, involved current federal determinate sentencing where enhancement is mandated under Sentencing Guideline § 3C1.1 if the defendant "willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice ..." which both the parties in that case correctly assumed included perjury. See, Dunnigan, 507 U.S., at ----, 113 S.Ct., at 1115-1116, supra, quoting the commentary to § 3C1.1. ⁵

Since New York's sentencing scheme is indeterminate, defense counsel urges that this be considered by the court in adopting the minority position among the several states that any consideration by the sentencing court of a defendant's perjury during his trial testimony as a factor in sentencing (1) is not authorized; (2) violates defendant's right to due process of law since the procedural safeguards of a formal trial for perjury are absent and (3) impermissibly chills the defendant's right to testify in his own behalf. For the reasons set forth herein, the Court rejects these arguments by the defense, but declines to impose an enhanced sentence as not appropriate in this particular case.

This is a case of first impression in New York State. The issues before this Court are as follows:

(1) Is this Court authorized to consider a defendant's perjury at trial as a factor in enhancing his sentence?

(2) Does the consideration of a defendant's trial perjury by the sentencing court in enhancing sentence, within statutory prescribed limits, impermissibly chill the defendant's exercise of his right to testify?

(3) Does the enhancement of a defendant's sentence because of his perjury at trial violate due process of law since the procedural safeguards of a formal trial for perjury are absent?

(4) If such enhancement is constitutional, what are the criteria to which the sentencing judge must adhere in imposing an enhanced sentence consistent with due process?, and

(5) Is this an appropriate case for sentence enhancement?

To answer these questions, an examination of the history and purpose of sentencing in the criminal justice system is necessary.

"At early common law, every crime required a fixed penalty." State v. Thompson, 310 N.C. 209, 216, 311 S.E.2d 866, 870 (1984), citing 4 W. Blackstone Commentaries 376 (J. Wendell ed. 1847).

In the early days of our Republic, most state legislatures prescribed definite sentences for specified crimes. United States v. Grayson, 438 U.S. 41, 45-46, 98 S.Ct. 2610, 2613-14, 57 L.Ed.2d 582 (1978). As time went on, such mandatory fixed penalties were...