People v. Mazzie

• Citation: 78 Misc.2d 1014,358 N.Y.S.2d 307
• Parties: The PEOPLE of the State of New York, v. Rocco MAZZIE, Defendant.
• Decision Date: 25 July 1974
• Court: New York Supreme Court

Page 307

358 N.Y.S.2d 307

78 Misc.2d 1014

The PEOPLE of the State of New York, v. Rocco MAZZIE, Defendant.

Supreme Court, Trial Term, New York County, Part 42.

July 25, 1974.

Selig Lenefsky, New York City, for defendant.

Richard H. Kuh, Dist. Atty., New York County by Michael McManus, Asst. Dist. Atty., for the People.

BURTON B. ROBERTS, Justice:

Defendant, Rocco Mazzie, in a pre-sentence memorandum, has challenged the constitutionality of Section 70.06 of the Penal Law, the second felony offender provision recently enacted in conjunction with the increased penalty structure for narcotics offenses, commonly known as the 'Rockefeller Law' (L.1973, cc. 276, 277). Section 70.06 provides for mandatory minimum State Prison sentences for anyone convicted of a felony in New York who, within ten years of the present offense, has been convicted 'in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year * * * was authorized irrespective of whether such sentence was imposed' subd. 1(b)(i). The ten-year period is tolled by the length of time the defendant may have been incarcerated, for any reason, in the interim subd. 1(b)(v).

Defendant has entered a plea of guilty to the crime of Attempted Bribery, a class E Felony, allegedly committed on September 26, 1973. The presentence report of the Probation Department reveals, and defendant concedes, that in April, 1959, he was convicted in the United States District Court for the Southern District of New York of a felonious conspiracy to violate the Federal narcotics laws (U.S.Code, tit. 21, former secs. 173, 174). He was thereupon incarcerated for some seven years, placing that conviction within a ten-year period of the instant offense, as extended by the incarceration. According to the new second felony offender law, therefore, defendant has a predicate felony conviction, requiring the imposition of a mandatory minimum sentence for the present offense.

Nevertheless, defendant maintains that Section 70.06 may not constitutionally be employed to increase his punishment in this case. He points out that the New York equivalent of the crime of which he was convicted in the Federal jurisdiction was but a misdemeanor, Conspiracy, under former Penal Law, Section 580. In fact, in People ex rel. Goldman v. Denno, 9 N.Y.2d 138, 211 N.Y.S.2d 403, 172 N.E.2d 663, the Court of Appeals had occasion to consider the effect of a conviction for this same Federal offense under an earlier predicate felony statute (former Penal Law, sec. 1941) and specifically held that it would have been a misdemeanor if perpetrated here. (See People v. Olah, 300 N.Y. 96, 89 N.E.2d 329.) Given the New York misdemeanor classification of his prior conviction, defendant, notwithstanding the serious nature of his prior conduct by all present standards, does have technical standing to make a two-pronged constitutional attack on the application of the second felony offender statute to cases involving prior convictions in other jurisdictions which would not have been felonies under New York law. The first such ground is that this application of the law violates Article III, Sections 1 and 16 of the New York State Constitution in that it improperly delegates legislative power to the legislatures of other jurisdictions and incorporates by reference the laws of those jurisdictions which would not be felonies in New York. The second ground is that it improperly treats those convicted in other jurisdictions more harshly than it treats persons convicted in New York State courts for the same conduct and therefore violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (and its equivalent in the New York State Constitution, Article I, Section 11).

I believe that both contentions are correct and hold that application of Section 70.06 is unconstitutional when the alleged predicate conviction would not have been a felony under New York law. As a result, the mandatory minimum sentence provisions of the new law cannot be invoked in the instant case.

It should be noted at the outset of this discussion that the multiple felony offender provisions of former Penal Law, Sections 1941 and 1942, which were not adopted in the Revised Penal Law, were consistently held to not be violative of any constitutional rights. Serious recidivism is clearly a proper basis for increased penalties. (Oyler v. Boles, 368 U.S. 448, 451, 82 S.Ct. 501, 7 L.Ed.2d 446; People v. Wilson, 13 N.Y.2d 277, 281, 246 N.Y.S.2d 608, 611, 196 N.E.2d 251, 253; People v. Gowasky, 244 N.Y. 451, 155 N.E. 737; People ex rel. Cosgriff v. Craig, 195 N.Y. 190, 88 N.E. 38.) These earlier statutes, however, required that in order for a prior conviction to constitute a predicate felony for purposes of punishment, it had to be for a crime 'which, if committed within this state, would be (a felony)'. The offender's prior conduct was thus measured against New York standards of behavior. The new provision contains no such relationship to the legislation of this State. It makes a predicate felony of a conviction for any act for which the legislature of any jurisdiction has seen fit to authorize a possible maximum sentence of imprisonment of more than one year, regardless of the actual sentence imposed and regardless of whether the prior offense would have been considered a serious crime--or any crime at all--in New York. ¹

Essentially framed, then, the question raised by the first ground of the instant attack is whether the statute in question can properly rely upon the laws of other jurisdictions to specify conduct which must be considered by this State to be the basis for the mandatory imposition of increased punishment for a New York offense.

Article III, Section 1 of the New York State Constitution provides that 'The legislative power of this State shall be vested in the Senate and Assembly.' A corollary of this section is that the Legislature may not delegate its legislative powers to any other legislative body. (Burke v. Kern, 287 N.Y. 203, 38 N.E.2d 500; People v. Kennedy, 207 N.Y. 533, 101 N.E. 442.) To do so would violate the fundamental concept of representative democracy upon which our system is based: that the Legislature act in the interests of, and be answerable to, its own electorate. (See Stanton v. Board of Supervisors, 191 N.Y. 428, 84 N.E. 380.) The classification of offenses for purposes of punishment and the prescription of punishment for crimes is clearly legislative power (People v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7) and thus it may not be delegated to the legislature of another jurisdiction. Punishment, it follows logically, must be based upon New York standards by a legislature responsible to the citizenry of this State. The provision in question, insofar as it relies on the standards of other jurisdictions to establish who must be considered a second felony offender in New York and receive mandatory increased punishment, violates this principle.

This constitutional infirmity becomes clearer when the prohibition against the delegation of legislative power is read together with the constitutional restriction against a statute incorporating the laws of other jurisdictions by reference, which is contained in Article III, Section 16 of the State Constitution. (See Darweger v. States, 267 N.Y. 290, 196 N.E. 61.) This section provides: 'No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act.' In People ex rel. Commissioners v. Banks, 67 N.Y. 568, 575--576, our State's highest court stated the reasoning behind this provision in language significant to this case: 'The evil which this provision of the Constitution was designed to correct was the incorporating into legislative enactments by a mere reference to some existing ...