People v. Mosley

• Decision Date: 20 August 1974
• Citation: 78 Misc.2d 736,358 N.Y.S.2d 1004
• Parties: The PEOPLE of the State of New York, Plaintiff v. Larry Charles MOSLEY, Defendant.
• Court: New York County Court

Page 1004

358 N.Y.S.2d 1004

78 Misc.2d 736

The PEOPLE of the State of New York, Plaintiff v. Larry Charles MOSLEY, Defendant.

Monroe County Court.

Aug. 20, 1974.

[78 Misc.2d 737] Jack B. Lazarus, Dist. Atty., Monroe County by Melvin Bressler, Rochester, of counsel, for the People.

Peter L. Yellin, Monroe County Public Defender by Leslie A. Bradshaw, Rochester, of counsel, for defendant.

DECISION

ANDREW G. CELLI, Judge.

The defendant pled guilty on July 19, 1974 to a charge of criminal sale of a controlled substance in the third degree. The guilty plea was in satisfaction of two indictments, one of which alleged conduct occurring after September 1, 1973, the effective date of the new drug law. The defendant is thus directly and immediately subject to the sentencing provisions of the new law, under which the said offense is deisgnated an A--III felony. (P.L. § 220.39, Subd. 1) The following conditions describe his circumstance:

1. Mandatory maximum term of life imprisonment. (P.L. § 70.00(2)(a))

2. Mandatory minimum term of from 1 to 8 1/3 years. (P.L. § 70.00(3)(a) (iii))

3. No possibility of probation, conditional discharge, or unconditional discharge. (P.L. § 60.05(1))

4. Lifetime parole (P.L. § 70.40(1)) assuming the defendant succeeds in being released from prison.

5. No possibility of civil commitment to the Drug Abuse Control Commission, despite a finding of addiction. (Mental Hygiene Law § 81.25(b)(3))

6. No possibility of youthful offender treatment. (CPL § 720.10(2))

7. No possibility of having the charge reduced through plea bargaining. (CPL § 220.10(6)(a))

This matter comes before the Court on motion of the defendant to declare Section 70.00, subds. 2(a) and 3(a)(i)(ii)(iii) of the New York State Penal Law unconstitutional as violation of the Eighth Amendment prohibition of cruel and unusual punishment and on other grounds.

The prohibition against cruel and unusual punishment was incorporated into the United States Constitution as a part of the Eighth Amendment in 1791. The phrase has found its way into the English Bill of Rights in 1688, into the Virginia Declaration of Rights in 1776, and into James Madison's proposed constitutional amendments in 1789. (33 A.L.R. 3rd 349) After 1791 almost every state constitution, including New York's, adopted identical or similar prohibitions. While many questions have been raised as to the intended meaning, and many remain, certain questions have been settled by clear precedent. Thus, it is clear that the prohibition is a dynamic concept to be continually evaluated and re-evaluated in light of a continually changing society. We are not to ask ourselves what was cruel and unusual in 1791, but what is cruel and unusual today. Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793. As stated in Goss v. Bomar, 6 Cir., 337 F.2d 341, 343 'The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'

Secondly, it has been settled that the humane and necessary stricture of the Eighth Amendment is not directed solely against the method, manner, or nature of punishment, but also against the length, severity and proportionality of the punishment to the offense in question. This rule was first given the highest force of law in Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544, 54 .l.Ed. 793. In that case the Supreme Court held unconstitutional as cruel and unusual a mandatory minimum term of twelve years imprisonment in chains at hard and painful labor for the offense of making false entries in government cash books. 'It is a precept of justice', said the Court, 'that punishment for crime should be graduated and proportioned to offense.' 217 U.S. at 367, 30 S.Ct. at 549. The Court also noted that less severe punishments were prescribed in other jurisdictions for similar crimes and even for more serious crimes. The same rule of proportionality was recognized in Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, reh. den. 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163, and in numerous cases of other jurisdictions, a few of which will be discussed presently.

Thirdly, the Court notes that it can no longer be questioned that the Eighth Amendment's ban on cruel and unusual punishment is applied to the states through the 14th Amendment. This was made clear in Robinson v. California (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.

The Court's attention has been directed to the broad, penetrating pronouncement of the Supreme Court of California in In Re Lynch (1972), 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921. The Court there, in declaring cruel and unusual a mandatory life term for a second offense of indecent exposure, isolated severe tests to be employed in determining whether a punishment is cruel and unusual. They are: (1) whether the punishment fits the offense and the offender, keeping in mind the danger to society and the penological purpose of rehabilitation; (2) comparison of the challenged punishment with punishment prescribed in the same jurisdiction for more serious offenses; and (3) comparison of the challenged punishment with that prescribed for the same offense in other jurisdictions. The Court notes that similar tests were applied in Hart v. Coiner, 4 Cir., 483 F.2d 136, holding a mandatory life sentence under the recidivism statute for a bad check offense to be unconstitutional as cruel and unusual.

The Court believes on the basis of the Lynch case, the Weems case, and other cases that the constitutionality of a sentence may be measured by means of the following tests: (1) nature of the offense taking into consideration the violent or non-violent nature of the crime, the aggravated or non-aggravated nature of the particular circumstances of the case, the degree of dangerousness of the crime to society; (2) the nature of the offender; (3) the punishment compared with punishment for other offenses in the same jurisdiction; (4) the punishment compared with the punishment for the same offense in other jurisdictions; (5) the recommendations of model legislation; and (6) the conscience of the Court.

Before considering these factors which the Court believes relevant, it would be important to mention what the Court believes to be irrelevant: the possibility of parole. The Court will not sit idly by and justify an unconstitutional deprivation of rights on the ground that an administrative agency may later come along and correct or reduce the injustice. The sentence imposed on every defendant must pass constitutional scrutiny. The Court notes that lifetime parole may itself constitute cruel and unusual punishment. Weems v. United States, Supra, 217 U.S. at 366, 30 S.Ct. 544.

(1) Nature of the offense. The Court notes at the outset that sale of a drug is not a violent act. The sale itself does not present a danger to the user or to society. But lest this application of the test to the Sale be considered too narrow and myopic, the Court notes that even the Use may not present the danger to users and to society which is popularly imagined. Voluminous material has been submitted which at the very least raises a serious doubt in the Court's mind as to the inherent danger of the opiates.

It is almost ironic that circumstances of the individual case should be one of the measures used, since that is a matter purportedly removed from consideration of the Court by the statute. The Court is not permitted to take into consideration the quantity of narcotic sold: whether a single fix, a thousand bags or a million dollar shipment. Life imprisonment is required. This Court is not allowed to consider the nature of the transaction: whether a sale for money, an exchange, gift or unaccepted offer. Life imprisonment. Nor can the Court consider the relationship of the parties: whether spouse, friend or stranger; nor the motivation of sale: whether for profit or humanitarian gesture of helping a sick friend; nor the seller's status in the narcotic distribution system: whether importer, kilo connection, ounce man, street dealer, pusher, or non-seller passing a needle. Life imprisonment is required in all cases, and in all cases the law thus presumes the worst.

(2) Nature of offender. It is a fundamental precept of our system of justice that the punishment should not only fit the offense, but the offender. Our system of separation of powers demands that this should be so. Moreover, rehabilitation has been recognized as the major objective of criminal punishment. Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337; People v. Oliver (1956), 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197. In the latter case the Court noted at p. 160, 151 N.Y.S.2d at p. 373, 134 N.E.2d at p. 202 that 'there is no place in the scheme for punishment for its own sake, the product simply of vengeance or retribution'. Again, however, with the law before the Court, no allowance for this fundamental precept is made. The Court is not allowed to consider the status of the buyer, whether addict or non-addict. Nor may it consider the qualities of the offender, whether young or old, family man or not high or low rehabilitative potential, value or potential value to society. In all cases there is a mandatory maximum of life imprisonment.

(3) Other crimes in the jurisdiction. The sale of narcotics is punished more severely and inflexibly than any other offense in the State of New York.

Aside from drug offenses, only arson 1st (causing explosion in occupied building), P.L. § 150.20; kidnapping 1st, P.L. § 135.25; murder, P.L. § 125.25; and attempted murder of a police officer, P.L. § 110.05(1); carry mandatory life terms. Of all the class A felonies, only the narcotics possession and sale offenses are prohibited from being reduced by plea bargaining below the A--III level, C.P.L. § 220.10(6)(a); which still carries a mandatory life maximum, and only those convicted of narcotics...