People v. Peterson

• Decision Date: 27 July 1977
• Docket Number: No. 1414,1414
• Citation: 398 N.Y.S.2d 24,91 Misc.2d 407
• Parties: The PEOPLE of the State of New York v. William PETERSON, Defendant. /74.
• Court: New York Supreme Court

Page 24

398 N.Y.S.2d 24

91 Misc.2d 407

The PEOPLE of the State of New York v. William PETERSON, Defendant.

No. 1414/74.

Supreme Court, Trial Term, Bronx County, Part 16.

July 27, 1977.

Mario Merola, Dist. Atty., by Jonas M. Gelb, New York City, for the people.

Victor L. Brizel, New York City, for defendant.

JOSEPH P. SULLIVAN, Justice.

Defendant, charged with robbery in the first degree and related offenses, moves for a dismissal of the indictment and for other forms of relief on the ground of discriminatory prosecution in that he is being prosecuted as a major offender by the Bronx District Attorney. The major offense program, which has been operating in Bronx County since July 2, 1973, with the financial assistance of the Law Enforcement Assistance Administration, is basically a program of accelerated prosecution. ¹ It is directed towards the perpetrator of the serious crime and the repeat offender. Its goal is to insure swift and certain justice for such malefactor.

As part of the program, the Bronx District Attorney's office instituted a system of screening procedures which identifies those cases in which the crime is particularly heinous or the alleged offender is a serious recidivist. Those cases are then evaluated by the major offense bureau for selective prosecution. The prosecution of major offense cases is marked by limited plea bargaining, full disclosure to defense counsel, immediate and thorough case preparation, and the assignment of a single assistant district attorney to handle a given case through all stages, from inception to conclusion.

In an evaluation of the bureau's performance in the first three years of its existence, it was found that the median time between arrest and case disposition was 97 days compared to a median time of 400 days for all other felony cases prosecuted by the Bronx District Attorney. A comparison between major offense cases and a select group of similar cases from the caseload of the Bronx District Attorney's Supreme Court bureau shows an overall conviction rate of 96% for the former and 84% for the latter; after trial, the conviction rate was 92% for the former and 52% for the latter. In cases prosecuted by the major offense bureau, 94% of those convicted were incarcerated as opposed to 79% in the comparison group cases. A survey of dispositions in a typical year since the program's inauguration shows that the average maximum sentence for a defendant prosecuted by the major offense bureau is 10 years. In the comparison group the average maximum is 3.5 years. ²

Defendant's moving papers consist of a rambling, prolix series of allegations, couched mainly in the form of rhetorical questions, attacking the legality of the major offender program. To appreciate fully the thrust and dimension of the broadside launched by these motion papers, a list of the various forms of ancillary relief sought is set forth:

1. A hearing on all aspects of the operations of the major offense bureau, including the method of selecting the parts of the court in which its cases are tried, and the effect of federal funding of state programs on an independent judiciary and on the rights of a defendant. Defendant argues that such hearing is required to provide him the opportunity to gather facts in order that he may move this court, the appellate courts and the federal courts for dissolution of the major offense bureau of the office of the District Attorney.

2. Discovery

a. The private and public records of the major offense bureau of the office of the District Attorney.

b. The criteria used by the District Attorney for the assignment of cases to the major offense bureau.

c. The criteria employed by the Supreme Court of the State of New York for the assignment of cases to parts designated for the trial of major offense bureau cases, and the identity of the party responsible for the court-created criteria.

d. A statistical breakdown of sentences given in major offense bureau parts in comparison to sentences given in non-major offense case parts.

e. Records reflecting the reasons why defendants prosecuted in major offense bureau parts receive speedier trials than those prosecuted in other parts of the court.

Charging violations of the equal protection and due process clauses of the United States Constitution (5th and 14th Amendments), defendant cites the following reasons, inter alia, as the bases for granting the relief sought:

1. Defendants prosecuted by the major offense bureau receive discriminatory, cruel and unusual punishment because

a) they are not permitted to plead to lesser charges and

b) they receive more severe sentences and more unfavorable publicity.

2. The practice of setting aside special parts of the Supreme Court solely to hear cases prosecuted by the major offense bureau is discriminatory, illegal and unconstitutional.

3. The speed with which major offense bureau cases are presented to the grand jury serves to deny defendants so prosecuted of a preliminary hearing (CPL § 180.60).

Without avowing any particular constitutional deprivation, defendant seems to be implying that he is being denied some fundamental right by being selected for prosecution as a major offender. Such vagueness is due, no doubt, to the difficulty he has in recognizing just what right it is that he is being denied. He certainly cannot claim that he is being denied the right to a speedy trial. If anything, the program augments that right.

Generally speaking, the gravamen of defendant's complaint seems to be that by being cast as a defendant in the accelerated prosecution program, he is being deprived of the right to be treated the same as other defendants in the criminal process. This argument is without merit.

At the root of this challenge is the oft-heard criticism that defendants prosecuted under the major offense program are being denied the plea bargain opportunities that are available to those not so prosecuted. There is, of course, no constitutional right to a plea bargain (People v. Bullock, 80 Misc.2d 73, 78, 362 N.Y.S.2d 682, 688). In stating this principle, there is no intention here to disparage plea bargaining or gainsay its efficacy in the crimin justice system. (See Santobello v. New York,404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427.) ³

Plea bargaining does in fact occur in the overwhelming percentage of major offense prosecutions but not on terms in which the elements of delay and staleness of prosecution are a factor. In most instances, the plea offered is to the highest count of the indictment or to the next highest count. Doubtless, it is this feature of the program that is so distressing to a defendant. If there is a certain intransigence in the position of the prosecutor as regards his plea offer in a major offense case, it is due to the fact that his case is relatively strong, well prepared and free of the debilitating effect of delay.

It should be noted at the outset that the major offense program involves a decision by the District Attorney of Bronx County to prosecute certain individuals by means of a procedure different from what is used to prosecute the majority of those accused of the commission of felonies. It is not a decision to prosecute only certain types of crimes or individuals. If a particular defendant is not selected for prosecution under the major offense program, he is prosecuted nonetheless. In short, what is involved is selective prosecution, not selective enforcement.

The District Attorney of Bronx County is charged by statute to prosecute diligently and fairly every crime committed by an adult within his jurisdiction (County Law § 700, et seq.). He is an agent of the People, independent of the judiciary. Of necessity, he must be free to allocate his resources, in terms of manpower and finances, to discharge the duties of his office to the best of his ability. That includes the right to focus greater attention upon the prosecution of those charged with serious crimes and the career criminal.

In 1973, faced with a caseload of such dimension that a two-year delay between indictment and trial was not unusual, the District Attorney of Bronx County decided to isolate those cases in which special prosecutorial attention was warranted. The major offender program was a response to studies which concluded that a relatively small number of offenders were responsible for a disproportionate number of serious crimes. ⁴ It was not an unreasonable exercise of optimism to hope that such a program might even restore some measure of the public's confidence in the criminal justice system.

In People v. Johnson, 38 N.Y.2d 271, 278, 379 N.Y.S.2d 735, 742, 342 N.E.2d 525, 530, the Court of Appeals took the occasion to criticize any prosecutorial priority system for the trial of criminal cases which is based purely on chronological order. "Such an unrefined priority system, taking into account only the date of the indictment and the incarceration of the accused, falls short of demonstrating that the delay in reaching this particular case for trial was due to a shortage, rather than mismanagement, of personnel."

It has been held that prosecutorial discretion in law enforcement "is by its very nature exceedingly broad" (Washington v. United States, 130 U.S.App.D.C. 374, 384, 401 F.2d 915, 925; see, also, United States v. Gainey, 142 U.S.App.D.C. 262, 263-264, 440 F.2d 290, 291-292; Newman v. United States, 127 U.S.App.D.C. 263, 264, 382 F.2d 479, 480). "(T)he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" (Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446).

In Oyler, the Supreme Court was faced with the question whether a failure to prosecute other eligible offenders under an habitual criminal statute because of either a lack of knowledge of prior offenses or the exercise of reasonable selectivity in enforcement denied equal protection to those prosecuted. In rejecting...