People v. Parker

• Citation: 390 N.Y.S.2d 837,41 N.Y.2d 21,359 N.E.2d 348
• Parties: , 359 N.E.2d 348 The PEOPLE of the State of New York, Appellant, v. Mary Ann PARKER, Respondent.
• Decision Date: 02 December 1976
• Court: New York Court of Appeals

Page 837

390 N.Y.S.2d 837

41 N.Y.2d 21, 359 N.E.2d 348

The PEOPLE of the State of New York, Appellant, v. Mary Ann PARKER, Respondent.

Court of Appeals of New York.

Dec. 2, 1976.

Francis J. Vogt, Dist. Atty., Kingston (E. Michael Kavanagh and Edward M. P. Greene, Kingston, of counsel), for appellant.

Mitchell J. Horne, Woodstock, and Stevan G. Rothenberg, Kingston, for respondent.

Louis J. Lefkowitz, Atty. Gen., New York City (Jules E. Orenstein and Samuel A. Hirshowitz, New York City, of counsel), intervenor pro se.

GABRIELLI, Judge.

On this appeal, the issue presented is the constitutionality of subdivision 1 of section 70.06 of the Penal Law, ¹ insofar as it deals with increased punishment for those defendants who have previously been convicted of crimes in other jurisdictions. Defendant has pleaded guilty to the crime of manslaughter, first degree (Penal Law, § 125.20), in satisfaction of an indictment charging two counts of murder, committed in Ulster County, New York. On the date set for sentencing, and pursuant to the provisions of CPL 400.21 (subds. 2, 3) the prosecutor served and filed a prior felony offender statement charging the defendant with having been convicted of the crime of larceny by breaking and entering (N.C. Criminal Law, § 14--54, subd. (a)) in the State of North Carolina in 1971. For that conviction, a sentence of three to five years was imposed, the execution of which was suspended. The defendant does not dispute this prior conviction and, indeed, concedes its existence. Upon the manslaughter conviction, defendant was sentenced as a second felony offender pursuant to the provisions of section 70.06 of the Penal Law to a term of 6 to 12 years' imprisonment, without objection by defendant. On appeal, the defendant contended that the use of the North Carolina conviction as a predicate for multiple felony offender punishment was improper, claiming that subdivision 1 of section 70.06 of the Penal Law violated both the Federal and State Constitutions. ² The Appellate Division agreed with this contention, vacated the sentence and remitted the case for resentencing of the defendant as a first felony offender. This was error.

Defendant claims, Inter alia, that the challenged statute violates the equal protection guarantee of the Fourteenth Amendment of the United States Constitution and section 11 of article I of the New York State Constitution. This claim is founded upon the argument that an individual may be sentenced to a term of imprisonment in excess of one year in a foreign jurisdiction for a crime which might not constitute a felony in New York. It is thus claimed that an individual who has committed a crime which warranted a sentence in excess of one year in another jurisdiction but which did not constitute a felony in New York is treated discriminatorily and more harshly than a person who has committed the same acts in New York but who does not receive multiple offender treatment under section 70.06 (citing People v. Morton, 48 A.D.2d 58, 367 N.Y.S.2d 595; People v. Downs, 49 A.D.2d 964, 374 N.Y.S.2d 59; People v. Mazzie, 78 Misc.2d 1014, 1018--1019, 358 N.Y.S.2d 307, 311--312). While these cases have sustained a constitutional challenge, other courts have held that the statute is constitutional and that the Legislature may rationally provide for increased punishment for individuals who have violated the criminal standards of other jurisdictions, irrespective of whether the crimes in those other jurisdictions are felonies in New York (see People v. Wright, 50 A.D.2d 729, 376 N.Y.S.2d 925; People v. Mercogliano, 50 A.D.2d 907, 377 N.Y.S.2d 989; People v. Darson, 48 A.D.2d 931, 369 N.Y.S.2d 530; People v. Wixson, 79 Misc.2d 557, 565--566, 360 N.Y.S.2d 818, 827--828; United States ex rel. Mercogliano v. County Ct. of Nassau County, D.C., 414 F.Supp. 508, affd. on opn. below --- F.2d ---).

We need not reach this question posed by the defendant since we hold that former subdivision 1 of section 70.06 of the Penal Law is constitutional as applied to the defendant in this case, and therefore, she does not have standing to challenge the constitutionality of the statute as applied to one not in her position. One who challenges the constitutionality of a statute is required to establish that the enactment as applied to him violates a constitutional norm ³ (Oriental Blvd. Co. v. Heller, 27 N.Y.2d 212, 220, 316 N.Y.S.2d 226, 230, 265 N.E.2d 72, 75; People v. Merolla, 9 N.Y.2d 62, 68--69, 211 N.Y.S.2d 155, 159--160, 172 N.E.2d 541, 545; People v. Faxlanger, 1 N.Y.2d 393, 395, 153 N.Y.S.2d 193, 135 N.E.2d 705; People v. Terra, 303 N.Y. 332, 334, 102 N.E.2d 576, 577; United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524; 8 N.Y.Jur., Constitutional Law, § 50, p. 577). In the instant case, the defendant may not claim that she is being treated more harshly than a defendant convicted of prior crimes in New York because the predicate North Carolina crime constitutes a felony both in North Carolina and in New York (People v. Wright, 50 A.D.2d 729, 376 N.Y.S.2d 925, Supra). Defendant was convicted of larceny by breaking and entering, a felony under North Carolina law; ⁴ and such an act would constitute a degree of burglary in New York, all forms of which are felonies here (Penal Law, §§ 140.20--140.30). Thus, the standard applied to determine whether this defendant's prior conviction may be the basis for second felony offender status is precisely the same as that applied to a defendant convicted of similar prior crimes in New York. She may not therefore claim a denial of equal protection.

Nevertheless, because there may be incarcerated defendants who are affected by former subdivision 1 of section 70.06 and because the Appellate Divisions are in conflict over the constitutionality of the statute (see People v. Morton, supra; People v. Wright, supra; People v. Darson, supra), we have decided that the question raised is of sufficient public importance that we should reach the merits of defendant's claim despite her individual lack of standing. Additionally, crimes committed in other jurisdictions and, indeed, in some localities in this State, with differing social mores and standards of conduct take on added significance in our hightly mobile society. We hold that the imposition of second felony offender status upon individuals convicted in other jurisdictions of crimes which in such other jurisdictions warrant sentence of imprisonment in excess of one year is rationally related to the valid governmental aim of treating habitual offenders more severely than first time offenders. ⁵ The equal protection clause does not mandate absolute equality of treatment but merely prescribes that, absent a fundamental interest or suspect classification, a legislative classification be rationally related to a legitimate State purpose (People v. Drayton, 39 N.Y.2d 580, 584--585, 385 N.Y.S.2d 1, 2--3, 350 N.E.2d 377, 378--379; Alevy v. Downstate Med. Center, 39 N.Y.2d 326, 332--334, 384 N.Y.S.2d 82, 87--88, 348 N.E.2d 537, 542--544; Montgomery v. Daniels, 38 N.Y.2d 41, 61, 378 N.Y.S.2d 1, 17, 340 N.E.2d 444, 455; Marshall v. United States, 414 U.S. 417, 422, 94 S.Ct. 700, 38 L.Ed.2d 618; McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 35 L.Ed.2d 282). While persons guilty of acts which are felonies in other jurisdictions but not in New York, are treated as second felony offenders, the statutory classification does not result in treatment so disparate as to be arbitrary or invidiously discriminatory (Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 98 L.Ed. 660). In New York a felony is defined as a crime for which a sentence of imprisonment in excess of one year may be imposed (Penal Law, § 10.00, subd. 5). Thus, in this State, all persons who have been convicted, either in New York or another jurisdiction, of a crime for which a sentence in excess of one year may be imposed, are subject to second felony offender treatment and are treated equally.

The Legislature, in enacting the challenged provision, exercised its considered judgment to provide that the seriousness of a crime should be determined by the severity of the sentence and the norms prevailing in the jurisdiction in which a crime was committed. There is no warrant for any alarm in what may be termed as exaggerated fears of frivolous or perverse sister-State punishment. The possible disparity of treatment between prior New York offenders vis-a -vis prior out-of-State offenders does not vitiate the legislative decision that an individual who has previously elected to violate the criminal standards of the society in which he was found should be treated as an habitual offender. This rationale underlies provisions in the Model Penal Code ( § 7.05, subd. (1)) and the American Bar Association Standards Relating to Sentencing Alternatives and Procedures ( § 3.3, subd. (b), par. (i)) from which the New York statute is derived. And, as noted, the well-founded purpose of providing for increased punishment of those who actually create the problem for themselves by persistent violations of penal statutes is to combat recidivism by increased punishment, not for the previous out-of-State offense but, rather for the commission of the subsequent offense.

The United States Supreme Court has previously sustained, against an equal protection challenge, a West Virginia statute which, like its New York counterpart, posited habitual offender treatment upon the severity of the sentence imposed; under the West Virginia law, any person who had been convicted of a crime punishable by 'confinement in a penitentiary' was subject to habitual offender treatment (Oyler v. Boles, 368 U.S. 448, 449, 82 S.Ct. 501, 7 L.Ed.2d 446; Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917). In the latter case the court stated that 'the fact of such sentence (confinement to a penitentiary), indicating the gravity of the offense, affords a...