People v. O'Neill

Decision Date13 December 1975
Citation85 Misc.2d 130,379 N.Y.S.2d 244
PartiesThe PEOPLE of the State of New York v. Sean O'NEILL, Defendant.
CourtNew York Supreme Court

Sterling Johnson, Jr., Sp. Narcotics Prosecutor, New York City, for the People; Robert Schlanger, Asst. Dist. Atty., of counsel.

Hoffinger, Friedland & Roth, New York City (Jack S. Hoffinger and Robert A. Goldschlag, New York City, of counsel), for defendant.

DECISION ON MOTION TO DISMISS INDICTMENT OR FOR ALTERNATIVE RELIEF

LISTON F. COON, Judge:

Defendant was indicted for the criminal sale of a controlled substance while a student at Columbia University. He now moves for a dismissal of the two pending indictments in the furtherance of justice (CPL § 210.40) or in the alternative that this court direct that the prosecutor recommend a sentence of probation pursuant to Penal Law, Section 65.00(1--b).

The evidence submitted to the court by way of argument and numerous letters presented by the defendant from personages high in the administrative hierachy at Columbia University indicate that at the time of the alleged offenses, defendant was a popular student at Columbia, a high scholastic achiever and extremely active in athletic and other extra-curricular activities. Nevertheless, he became enmeshed in certain drug-sale activities and was eventually arrested for sale of cocaine to an undercover police officer. Thereafter he offered to 'cooperate' with the police and prosecution authorities, obviously with a view to obtaining possible avoidance of a mandatory prison sentence if convicted. A life-probation sentence is the sole alternative to imprisonment for one convicted of a Class A drug felony under Article 220 of the Penal Law.

The record shows that some effort directed at the contemplated cooperation was made but insufficient in the judgment of the District Attorney to effectuate a recommendation pursuant to Penal Law Article 65.00. Defendant now seeks to force that relief.

He first seeks a dismissal of the indictment in the furtherance of justice. This power, vested in a court pursuant to CPLR § 210.40, is a replacement to the now deceased prosecutor's option of Nolle prosequi (People v. Quill, 11 Misc.2d 512, 177 N.Y.S.2d 380). The purpose of this discretionary authority is to allow, but only in rare circumstances, the letter of the law to succumb to the spirit of justice (People v. Davis, 55 Misc.2d 656, 286 N.Y.S.2d 396). The court must be ever cognizant, however, that honest labors of a grand jury and a District Attorney should not be lightly set aside (People v. Williams, 140 Misc. 35, 249 N.Y.S. 425).

CPL § 210.40 provides that a court may dismiss an indictment or a count thereof where there exists some 'compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant . . . would constitute or result in injustice.'

The proof in this proceeding does not persuade the court that there exists any compelling reason for dismissal. We are not dealing with a matter of possession of a controlled substance such as marijuana (Cf. People v. Davis, supra) but a sale of cocaine in which the transaction price was $7,000., albeit others than the defendant were involved. Giving the defendant every benefit of any doubt as to his erstwhile status as a 'Big Man on the Campus' at Columbia or any remorse or repentance that he might now exhibit, there is no question but that he knowingly and intelligently engaged in prohibited activities. 1 He makes no pretense of showing that he was ignorant or oblivious to the stringent provisions of the existing drug laws.

Social, economic or educational status of a defendant are specious arguments to the enforcement of our criminal laws. Recent history, particularly of the so-called Watergate era, demonstrates that persons in the highest of places are not and should not be immune from indictment and possible conviction.

Defense counsel alludes to the Draconian effect of our drug laws. So be it. The punishment provisions are considered to be neither cruel nor inhuman (People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338). One could as readily, and some do, speak the same of our capital punishment statutes. Regardless, fools rush in where angels fear to tread (Alexander Pope, Essay on Criticism, Part III, L. 66).

Defendant has utterly failed to establish why his case should be treated differently from the mass of other drug prosecutions now confronting the courts. Justice would in no way be furthered by now exempting him from its processes. The branch of the motion seeking to dismiss the indictment is denied.

In the alternative, defendant would have this court rule that the prosecutor be required to recommend probation as a sentence disposition of the case.

Although not specifically pleaded and requested in the motion, defendant questions in a tangential sense the constitutionality of Penal Law § 65.00 insofar as it pertains to the discretionary power of the District Attorney to recommend lifetime probation. That may be disposed of on present case law to the effect that the provision is not unconstitutional (People v. Eason, 49 A.D.2d 621, 370 N.Y.S.2d 661; People v. Lofton, 81 Misc.2d 572, 366 N.Y.S.2d 769; People v. Gardner, 78 Misc.2d 744, 359 N.Y.S.2d 196).

Absent a showing that a statute is clearly unconstitutional (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, 108 N.E. 427, affd., 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218) constitutionality should be upheld even if there is some doubt (People v. McNair, 46 A.D.2d 476, 363 N.Y.S.2d 151, affd., 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338; People v. Yale, 49 A.D.2d 167, 373 N.Y.S.2d 901).

The specifics of Penal Law § 65.00(1--b) provide that a court, with the approval of the administrative judge, may sentence a convicted A--III felon to probation if the prosecutor 'either orally on the record or in a writing . . . Recommends' the same. (Emphasis added.) This recommendation is bottomed on a premise that the defendant 'is providing material assistance in the investigation, apprehension or prosecution' of a person charged with a drug felony under Penal Law, Article 220.

Admittedly the definition of 'material assistance' is imprecise. That, however, the court finds irrelevant.

The legal issue is the ultimate question of whether or not there is a forthcoming recommendation by the prosecutor. We are not dealing with the discretion of a court but the discretion of a District Attorney in whom the Legislature has reposed an option.

At the threshold, one can consider the practical application of the 'cooperation' provision. A defendant is charged with an offense whereby, if convicted, he must receive a life sentence. The prospect of a life sentence is ameliorated by a 'carrot on a stick' if he will 'cooperate' with police authorities. It is an overture and easily grasped by one who may be aboard a sinking ship. At the outset, it is entirely a matter of supposition on both sides whether or not 'material assistance' can be provided. Should a defendant be permitted to enlist in such an effort and then regardless of what he may deem to be 'material assistance' call the shots and get his sought-for relief? If so, he is in a position to 'hold back' or end up having 'cold feet' and still try to secure his 'vite of the apple.' The court thinks not. It is analogous to a defendant who initially waives a right to a speedy trial and after conviction seeks to assert that right. He will not be permitted to play 'fast and loose' in that situation (People v. Begue, 1 A.D.2d 289, 149 N.Y.S.2d 791).

A District Attorney or other prosecuting official is given considerable statutory discretion. Even at common law, the power to criminally charge and to control the same was reposed in the prosecutor (McDonald v. Sobel,...

To continue reading

Request your trial
6 cases
  • State v. Cengiz
    • United States
    • New Jersey Superior Court — Appellate Division
    • June 1, 1990
    ...(so long as statute does not take away power of sentencing from the courts, there is no constitutional defect); People v. O'Neill, 85 Misc.2d 130, 379 N.Y.S.2d 244, 249 (1975) (court cannot compel prosecutor to recommend probation). However, other states recognize the need for standardized ......
  • Stephens, Matter of
    • United States
    • New York Family Court
    • February 9, 1979
    ...authority is to allow the letter of the law to succumb to the spirit of the law in certain rare instances. (People v. O'Neill, 85 Misc.2d 130, 379 N.Y.S.2d 244) Although the Criminal Procedure Law itself makes no reference to the guidelines upon which a court should base its discretion, gui......
  • People v. Varela
    • United States
    • New York Supreme Court
    • November 9, 1983
    ...marijuana by a friend, he accepted it out of curiosity. The court (Schweitzer, J.) granted the motion to dismiss. In People v. O'Neill, 85 Misc.2d 130, 379 N.Y.S.2d 244, a popular university student who was a high scholastic achiever and extremely active in athletic and other extracurricula......
  • People on Complaint of Bonomolo v. Leiberman
    • United States
    • New York City Court
    • October 24, 1988
    ...instead a judgment in the "spirit" of justice, but such a motion is not to be used as a substitute for trial. See People v. O'Neill, 85 Misc.2d 130, 379 N.Y.S.2d 244 (Supreme Court, New York County, 1975); People v. Prunty, 101 Misc.2d 163, 420 N.Y.S.2d 703 (Criminal Court, Queens County, T......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT