People v. Marcus

• Decision Date: 21 April 1977
• Citation: 90 Misc.2d 243,394 N.Y.S.2d 530
• Parties: PEOPLE of the State of New York, v. Thomas MARCUS, Defendant. PEOPLE of the State of New York, v. Thomas MARCUS and Dale Petrillo, Defendants. PEOPLE of the State of New York, v. Carlos LE BRON, Defendant.
• Court: New York Supreme Court

Page 530

394 N.Y.S.2d 530

90 Misc.2d 243

PEOPLE of the State of New York, v. Thomas MARCUS, Defendant.

PEOPLE of the State of New York, v. Thomas MARCUS and Dale Petrillo, Defendants.

PEOPLE of the State of New York, v. Carlos LE BRON, Defendant.

Supreme Court, Special Narcotics Court, New York County,

General Trial Term, Calendar Term, Part A.

April 21, 1977.

Gerald B. Lefcourt, New York City, for defendant Marcus.

Lawrence Goldman, New York City, for defendant Petrillo.

Chester L. Mirsky, New York City, for defendant LeBron.

Sterling Johnson, Jr., New York City, for the People.

MICHAEL J. DONTZIN, Justice.

These cases are considered and disposed of by this decision since they involve identical legal and factual issues. Defendants by their attorneys move to dismiss their indictments pursuant to § 210.20(1)(h) of the C.P.L.

The grounds for the relief sought are that certain actions of law enforcement officials of the New York State Drug Enforcement Task Force (hereafter referred to as "Task Force") ¹ have violated defendant's rights under the equal protection and due process clauses of the Constitutions of both the United States and the State of New York.

The defendants were arrested as a result of investigations conducted by the New York Drug Enforcement Task Force. The actual arrest was made by "D.E.A." special agents. The "drugs" involved in all of the alleged transactions were analyzed by the "D.E.A." laboratory.

It is alleged that after being arrested, each defendant was taken to a "Task Force" or "D.E.A." office and were told by the "Task Force" or "D.E.A." agent that he should cooperate (turn informer); that if he cooperated he would be prosecuted federally and treated "leniently"; that if he failed to cooperate he would be prosecuted in the New York State courts, with the consequent harsher penalties (mandatory minimums, life time maximum sentence and life time parole upon conviction).

In all instances, the defendants refused to "cooperate" and were indicted in the New York State courts for varying degrees of Class "A" Felonies. All the witnesses who testified before the Grand Juries which indicted the defendants were special agents of the "D.E.A.".

In support of their position, counsel for the defendants submitted an affidavit made by a Ms. Katherine Hudson (a law student), based upon her conversations with officials of the "D.E.A." and the "Task Force". According to her affidavit, the following criteria are followed by the Task Force in channeling cases from the Task Force to the state or federal courts for prosecution:

available sentencing structure (harsher sentence under state law); amount of narcotics involved (lesser cases to state courts); need for search warrants (easier to obtain in state courts); extent of conspiracy (easier to prove in federal jurisdiction); requirements of corroboration (easier rules in federal jurisdiction); opportunity for trial as opposed to plea bargaining (greater percentage of trials in federal jurisdiction).

Aside from the question of constitutional validity, one can not seriously quarrel with these criteria as being factually either arbitrary or unreasonable.

This court is hard pressed to find any basis for the defendant's assertion that the "Task Force" agents are the "decision makers" regarding the forum of prosecution, and that this is an unconstitutional assumption of power. At best the procedures for implementation of the criteria outlined in the Hudson affidavit are recommendations that are acted upon by the federal and state prosecutors who control the prosecution in all respects.

The defendant's contention that the criteria and procedures as outlined, in and of themselves result in constitutionally impermissible selective or discriminatory prosecutions, can not be sustained as a matter of law.

It is well settled that where a single act violates more than one statute an offender may be prosecuted under either (U. S. v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1940)). A defendant does not have a constitutional right to be prosecuted under a federal rather than a state law, where his acts violates both (Hutcherson v. U. S., 120 U.S.App.D.C. 274, 345 F.2d 964, cert. denied 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965)). This is so, even where he is prosecuted under that statute which imposes the higher penalty (U. S. v. Eisenmann, 396 F.2d 565, 568 (2nd Cir. 1969); Black v. U. S., 405 F.2d 187 (5th Cir. 1968); Hutcherson v. U. S., supra ).

It is permissible to prosecute a defendant in two jurisdictions where the laws of the both have been violated (Abbate v. U. S., 359 U.S. 187, 79 S.Ct. 666, 31 L.Ed.2d 729 (1959)); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); provided that there is no violation of the proscription against double jeopardy (Abraham v. Justices of New York, Supreme Court of Bronx County, 37 N.Y.2d 560, 376 N.Y.S.2d 79, 338 N.E.2d 597 (1975)).

It is quite clear that the ultimate discretionary power, absent abuse and unlawful discrimination, to determine the course, extent and forum of prosecution is with the prosecutor (People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435, 313 N.E.2d 746). "Moreover, the conscious exercise of some selectively in enforcement is not in (and of) itself a federal (or state) constitutional violation". (Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446).

However, a serious constitutional issue is raised where, as it is claimed here, the defendant's were singled out for prosecution under a specific statute in a specific jurisdiction, in order to expose them to harsher or higher penalties upon conviction, solely because they refused to cooperate and turn informers.

The court, based on its own extensive experience in cases such as these, recognizes and takes judicial notice that in order to "cooperate" the defendants would be compelled to give a full statement as to their own activities and participation in the drug transactions for which they were indicted; as well as, implicate all others who may have been involved. Moreover, the defendants would have to become confidential informers for the Task Force and help them "make" other drug cases (bring about the arrest and prosecution of drug law offenders).

The fundamental constitutional issues here are the same as those in similar cases where the courts found unconstitutionally selective or discriminatory prosecution.

United States v. Falk, 479 F.2d 616 (7th Cir. 1972) involved a conviction for failure to possess a draft registration card and for refusal to submit to induction in the Armed Forces. Falk claimed he was singled out for discriminatory prosecution because he was an active member of an organization that counselled draft resisters. His conviction was reversed and the case remanded for a hearing on the issue of whether there was a discriminatory prosecution purpose in seeking his indictment.

Similar results were reached in United States v. Steele, 461 F.2d 1148 (9th Cir. 1972) which involved a conviction for refusing to answer questions in a census report in violation of federal law. The defendant there argued that he had been deliberately selected for prosecution because of his known activities in a census resistance movement.

Convictions were also reversed in United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972). There the courts found unlawful selective prosecutions of the defendants who were convicted of violating disorderly conduct regulations of a federal agency which prohibited loud and unusual noises, obstruction of passageways and distribution of hand bills at the Pentagon. There the defendants contended that they were selected for prosecution solely because they held a "Mass for Peace" in opposition to the Viet Nam War; whereas, many other activities involving as much noise, obstruction, etc., took place at the Pentagon without any governmental reaction.

United States v. Berrios, 501 F.2d 1207 (2nd Cir. 1974) dealt with an indictment and prosecution of the defendant on the grounds that he was serving as an officer of a labor union, within five years of his conviction of a felony, in violation of federal law. Berrios claimed that he was selected for prosecution because he supported Sen. McGovern as against Richard Nixon in the 1972 presidential elections and for the further reason that he was attempting to unionize a hotel chain that enjoyed close ties with President Nixon and his family.

While the case turned on a procedural point, the court went to great lengths to discuss the principles of law laid down in the Falk, Crowthers and Steele cases (supra ), and to condemn as unconstitutional prosecutions based on impermissible consideratio as race, religion or the desire to prevent (the defendant's) exercise of constitutional rights (p. 1211).

Similarly in Dixon v. Dist. of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966 (1968) ...