People v. McNair

• Decision Date: 16 January 1975
• Citation: 46 A.D.2d 476,363 N.Y.S.2d 151
• Parties: PEOPLE of the State of New York, Respondent, v. Doris Ann McNAIR, Appellant. PEOPLE of the State of New York, Appellant, v. Larry C. MOSELY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 151

363 N.Y.S.2d 151

46 A.D.2d 476

PEOPLE of the State of New York, Respondent, v. Doris Ann McNAIR, Appellant.

PEOPLE of the State of New York, Appellant, v. Larry C. MOSELY, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Jan. 16, 1975.

Peter L. Yellin, Rochester (Robert S. Beer, Rochester, of counsel), for appellant in #796

Jack B. Lazarus, Rochester (Melvin Bressler, Rochester, of counsel), for respondent in #796 and appellant in #797.

Peter L. Yellin, Rochester (Leslie A. Bradshaw, Rochester, of counsel), for respondent in #797.

Ruth Kessler Toch, Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany (Peter J. Dooley, Albany, of counsel), for Atty. Gen. in #796 and #797.

New York Civil Liberties Union, New York City (Kenneth P. Norwick, New York City, and David W. Beier, III, Rochester, of counsel), amicus curiae in #796 and #797.

Before MARSH, P.J., and WITMER, CARDAMONE, SIMONS and GOLDMAN, JJ.

OPINION

CARDAMONE, Justice:

We are called upon to determine in these two appeals, which have been consolidated for this purpose, whether sentencing provisions of the Penal Law which mandate life sentences in cases of certain drug related convictions are unconstitutional as violating the Eighth Amendment of the United States Constitution and Article I, section 5 of the New York State Constitution as constituting cruel and unusual punishment.

FACTS

In Mosely, the People appeal pursuant to section 450.20(4) of the Criminal Procedure Law from a judgment (insofar as it imposed sentence) of the Monroe County Court which declared unconstitutional sections 70.00(2)(a), (3)(a)(iii) and the last sentence of 220.39 of the Penal Law as amended in 1973. Defendant Larry C. Mosely was charged with criminal sale of a dangerous drug in the third degree under former sections 220.35 and 70.00 of the Penal Law by the Monroe County Grand Jury on November 16, 1973. On February 8, 1974, defendant was further charged by the Grand Jury with criminal sale of a controlled substance in the third degree under section 220.39(1) of the Penal Law. On July 19, 1974 defendant pled guilty to the latter indictment under the amended Penal Law in satisfaction of all charges. According to an information signed by the district attorney, defendant had a prior record of conviction of the felony of grand larceny in 1970. The Trial Court sentenced defendant Mosely, upon his plea of guilty to the charge of criminal sale of a controlled substance, third degree, to a term of from three to six years imprisonment under the law in effect prior to its amendment in 1973.

In McNair, defendant Doris A. McNair appeals from a judgment of the Monroe County Court entered April 22, 1974, convicting defendant, following a jury trial, of criminal possession of a controlled substance, second degree, criminal use of drug paraphernalia (2 counts) and criminal possession of a hypodermic instrument. Criminal possession of a controlled substance in the second degree is a Class A-II felony (Penal Law, § 220.18) and is punishable by a mandatory maximum term of imprisonment for life (Penal Law, § 70.00(2)(a)) and a mandatory minimum of not less than six years nor more than eight and one-third years (Penal Law, § 70.00(3)(a)(ii)). Defendant was sentenced by Monroe County Court to concurrent terms of six years to life at Bedford Hills State Correctional Facility on the felony count and one year each on the other convictions.

LEGAL TESTS APPLICABLE

Historically, our system of government has recognized the function of the legislative branch to define crimes and prescribe punishments and that such questions are in the first instance for the judgment of the Legislature alone (see In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921). The courts declare an act of the Legislature unconstitutional only when the unconstitutionality of the statute is 'clear' (Garcia v. Pan American Airways, 183 Misc. 258, 50 N.Y.S.2d 250, affd., 269 App.Div. 287, 55 N.Y.S.2d 317, affd., 295 N.Y. 852, 67 N.E.2d 257, cert. den., 329 U.S. 741, 67 S.Ct. 79, 91 L.Ed. 640) and 'without doubt' (People v. Crane, 214 N.Y. 154, 173, 108 N.E. 427, 433, affd., 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218), since courts ordinarily have no power to substitute their opinions for the judgment of the Legislature (Williams v. Mayor, 289 U.S. 36, 46, 53 S.Ct. 431, 77 L.Ed. 1015). A legislative enactment carries a strong presumption of constitutionality (Wasmuth v. Allen, 14 N.Y.2d 391, 397, 252 N.Y.S.2d 65, 69, 200 N.E.2d 756, 758; Defiance Milk Products Co. v. DuMond, 309 N.Y. 537, 540--541, 132 N.E.2d 829, 830--831; Matter of Watson, 226 N.Y. 384, 404, 123 N.E. 758, 764), including in it the presumption that the Legislature has found facts sufficient to support its enactment (I.L.F.Y. Co. v. Temporary State Housing Rent Comm., 10 N.Y.2d 263, 269, 219 N.Y.S.2d 249, 252, 176 N.E.2d 822, 825). Moreover, 'it is a firmly established principle, and one which has become cardinal and elementary in the field of constitutional law, that the propriety, wisdom, necessity, adequacy, efficacy, utility, desirability and expediency of legislation are not matters which are to be considered by the courts' (8 N.Y.Jur., Constitutional Law, § 72 at 599--602, and cases therein cited). The reason for this principle and the strong presumption of constitutionality is that the public interest requires, under ordinary circumstances, that legislative enactments be given recognition and enforced by the courts as embodying the will of the people (Zorach v. Clauson, 303 N.Y. 161, 172, 100 N.E.2d 463, 467, affd., 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954). The burden of proving these provisions of the Amended Penal Law unconstitutional is on the defendants (Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 79, 31 S.Ct. 337, 55 L.Ed. 369; Matter of Fay, 291 N.Y. 198, 206, 52 N.E.2d 97, 98; People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205) and, if the proof with respect to this issue is not clear, but only doubtful, courts will not declare a statute unconstitutional (People v. Crane, 214 N.Y. 154, 108 N.E. 427, affd., 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218, supra).

THE STATUTES

The drug problem, as it exists today in New York State, needs no citation of authority to establish its pervasive existence. Narcotics addiction, particularly hereoin addiction, is undoubtedly one of the most serious social evils confronting American society today. ¹ The legislative response to this problem was the enactment of Chapters 276--278 of the Laws of 1973. These laws, under attack on this appeal, reclassified Class A felonies which subject a convicted defendant to an indeterminate sentence with a mandatory maximum term of life imprisonment, and with various mandatory minimum terms for the subclasses A--I, A--II and A--III, down to a minimum of one year (Penal Law, § 70.00(2)(a), and § 70.00(3)(a)(iii)).

Other sections of the statute are the probation requirements (Penal Law, § 65.00(1)(b) and (3)(a)(ii)), lifetime parole (Penal Law, § 70.40(1)), restriction on civil commitment (Mental Hygiene Law, § 81.25(b)(3)), prohibition of youthful offender treatment (Criminal Procedure Law, § 720.10(2)), and limitation on plea bargaining (Criminal Procedure Law, § 220.10(6)(a)).

CONSIDERATION OF THE MERITS

The defendants primarily assert that section 220.39 of the Penal Law is unconstitutional as violative of the Eighth Amendment ban on cruel and unusual punishment in that the sentence prescribed is disproportionate to the offense. In its earliest years the United States Supreme Court adopted a 'historical' interpretation of the Cruel and Unusual Punishments Clause. In In re Kemmler, 136 U.S. 436, 446, 10 S.Ct. 930, 933, 34 L.Ed. 519, the Court declared that 'if the punishment prescribed for an offense against the laws of the state were manifestly cruel and unusual as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition.' However, as several of the Justices noted, the 'looking backwards' approach was decisively repudiated in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793. Were it not, and had the 'historical' interpretation of the Clause prevailed, the 'cruel and unusual punishments' prohibition would have been effectively read out of the Bill of Rights (Furman v. Georgia, 408 U.S. 238, 265, 92 S.Ct. 2726, 33 L.Ed.2d 346 (Brennan, J., concurring)). The Eighth Amendment proscription against 'cruel and unusual punishments' is applicable to the States through the Fourteenth Amendment. (See, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758; see also, People v. Davis, 33 N.Y.2d 221, 351 N.Y.S.2d 663, 306 N.E.2d 787).

The Cruel and Unusual Punishments Clause like other great provisions of the Constitution is not susceptible to precise definition (Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 2 L.Ed.2d 630). Recently, the United States Supreme Court was called upon to test the ultimate form of punishment, the taking of a human life, against the prohibition of that Clause (Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346). A review of the concurring opinions by the several members of the majority of the Supreme Court in Furman reveals the following four generalized criteria for assessing constitutional validity of punishments imposed by sentencing statutes. The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. A second guiding principle is that the State must not arbitrarily inflict a severe punishment. Thirdly, inherent in the Clause is that a punishment must not be unacceptable to contemporary society. Finally, the fourth principle implicit in the Clause is that a punishment must not be excessive.

Whether a punishment is excessive is determined by a two-pronged test. A...