People v. Pacheco

• Citation: 421 N.E.2d 114,438 N.Y.S.2d 994,53 N.Y.2d 663
• Parties: , 421 N.E.2d 114 The PEOPLE of the State of New York, Respondent, v. Hector PACHECO, Appellant.
• Decision Date: 26 March 1981
• Court: New York Court of Appeals Court of Appeals

Page 994

438 N.Y.S.2d 994

53 N.Y.2d 663, 421 N.E.2d 114

The PEOPLE of the State of New York, Respondent, v. Hector PACHECO, Appellant.

Court of Appeals of New York.

March 26, 1981.

William E. Hellerstein, New York City, for appellant.

Eugene Gold, Dist. Atty. (William Gurin, Asst. Dist. Atty., of counsel), for respondent.

OPINION OF THE COURT. MEMORANDUM.

The order of the Appellate Division, 73 A.D.2d 370, 426 N.Y.S.2d 57 should be affirmed, but on the ground that defendant had no standing to raise the equal protection argument he advances (People v. Parker, 41 N.Y.2d 21, 24-25, 390 N.Y.S.2d 837, 359 N.E.2d 348).

Defendant's equal protection contention is based upon the definition of predicate felony conviction in subdivision 1 (par. cl. of section 70.06 of the Penal Law, which is: "The conviction must have been 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 or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed" (emphasis supplied). The italicized words, upon which defendant's argument is predicated, were added to the clause by chapter 784 of the Laws of 1975. Read without those words, as prior to that amendment it must have been, it is clear that the words "was authorized" relate to the other jurisdiction offense. The added words, it is argued, relate to time of sentence, rather than time of commission of offense and there is, therefore, unequal protection because the prior New York conviction is not required, as would be a foreign conviction, to be based upon an offense which is a felony in New York at the time of sentence (cf. People v. Shapiro, 100 Misc.2d 662, 664, 418 N.Y.S.2d 892).

The answer is that the Marihuana Reform Act of 1977, which reduced the offense of which defendant was previously convicted from felony to misdemeanor classification, expressly provided that its provisions "shall be applicable to acts committed on or after" its effective date (July 29, 1977 As to the prior offense which defendant committed, a sentence to a term of imprisonment in excess of one year is, therefore, still authorized in this State with respect to anyone convicted of committing the forbidden act prior to July 29, 1977, though he or she may be thereafter convicted. There are, in fact, two authorized but differing sentences depending on the date of commission of the offense. Thus, it is not true as defendant argues that a foreign conviction cannot be used as a predicate felony because not presently a felony in New York; if the act in the foreign State was committed prior to July 29, 1977 it is still punishable under New York law as a felony. All persons in defendant's class (pre-July 29, 1977 commission) are, therefore, treated equally. Whether a post-July 29, 1977 offender is treated unequally is an argument defendant does not have standing to make.

As to the sentencing issue, defendant asked the Sentencing Judge to impose a lesser sentence than had been bargained for, but never argued that the Judge was not bound by the bargain and, therefore, has not preserved the question for our review. (People v. Chambers, 52 N.Y.2d 923, 437 N.Y.S.2d 668, 419 N.E.2d 346; People v. Martin, 52 N.Y.2d 925, 437 N.Y.S.2d 668, 419 N.E.2d 346; and see People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864).

COOKE, Chief Judge (concurring).

Although the order of the Appellate Division should be affirmed, as the majority concludes, the affirmance should be based upon the merits rather than upon defendant's asserted lack of standing. In concluding that defendant has no standing, the majority adopts a reading of the Penal Law's second felony offender provisions that is inconsistent with the statutory language and undercuts the Legislature's efforts to remove unduly harsh anomalies from the sentencing scheme. I therefore concur separately.

Defendant raises a challenge, on equal protection grounds, to his sentence as a second felony offender under section 70.06 of the Penal Law. In June, 1972, he pleaded guilty to fourth degree attempted criminal possession of a dangerous drug, marihuana, and received five years probation. At that time, the offense was an E felony (former Penal Law, § 220.06). On May 19, 1977 he pleaded guilty to fifth degree criminal sale of a controlled substance, cocaine. He was sentenced as a second felony offender. Defendant's equal protection argument centers on the impact of a 1975 amendment (L.1975, ch. 784) to the definition of a "second felony offender" in section 70.06 (subd. 1, par. cl. of the Penal Law. The statute provides that for a prior conviction to constitute a predicate felony, the conviction "must have been 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 or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed." The words "and is authorized in this state" were added by the 1975 amendment.

In essence, defendant argues that the statute violates equal protection because any prior New York felony conviction can serve as a predicate felony, while an out-of-State conviction can be used only if a sentence of at least one year was authorized at the time and is currently authorized in New York. Thus, he asserts, when this State reclassifies a crime from a felony to a misdemeanor, a prior out-of-State conviction for the offense can no longer serve as a predicate felony. A prior New York felony conviction can still serve as a predicate felony, however, even though the offense would no longer be a felony in New York. Effective July 29, 1977, the Legislature reclassified the crime of which defendant was convicted, reducing it for future offenses from a felony to a misdemeanor (Marihuana Reform Act of 1977, L.1977, ch. 360).

The majority rejects defendant's argument by holding that defendant is not, in fact, treated differently from those persons who were convicted in other jurisdictions at the same time of the same offense. To reach this conclusion, however, the majority carves a hole in the 1975 amendment to section 70.06. Such an exception is inconsistent with the language of the amendment and the rationale behind it.

As the majority notes, the Marihuana Reform Act reduced penalties for marihuana-related offenses prospectively only. Thus, an act such as defendant's, occurring in New York before the effective date of July 29, 1977, would still be subject to felony treatment. The majority errs, however, in extending this rationale to encompass similar acts occurring outside the State before July 29, 1977. It reasons that since defendant's offense, because...