People v. Prator

• Decision Date: 23 February 1978
• Parties: The PEOPLE of the State of New York, v. Vincent PRATOR, Defendant.
• Court: New York District Court

Page 739

402 N.Y.S.2d 739

93 Misc.2d 303

The PEOPLE of the State of New York, v. Vincent PRATOR, Defendant.

District Court, Nassau County, First District, Criminal Part.

Feb. 23, 1978.

Denis Dillon, Dist. Atty., Mineola by Martin C. Fisher, Asst. Dist. Atty., for the People.

Skoy, Lowell, Chase & Nussbaum, P. C., Mineola, by Sydney J. Chase, Mineola, for defendant.

HAROLD FERTIG, Judge.

On January 30, 1978, prior to trial, a Huntley Hearing was held to determine whether certain alleged statements made by the defendant and property seized as a result of a search of defendant's automobile should be suppressed. At the conclusion of the hearing a further motion was made again requesting suppression of the oral statements made by the defendant, suppression of property seized from the motor vehicle alleged to be driven by the defendant and for an order dismissing the information charging the defendant with a misdemeanor pursuant to section 220.03 P.L. or in the alternative reducing said charge to a violation under Article 221 of the New York Penal Law. And, finally, dismissing all pending charges in the interests of justice.

At the hearing Police Officers Strand and Miller were the only witnesses. The court finds that they were both members of the Hempstead Village Police Department and each responded to a call from the headquarters operator who advised each individually that someone had called in, stating that a thin male black, dressed in a white tee shirt, with dark rings about the sleeves, wearing grey pants was selling drugs to children. Both went to the described location and observed the defendant who appeared to meet the description. Each observed him for a while but saw no evidence of any sale of contraband. While watching they saw him walk over to a blue Ford which was parked in a "tow-a-way zone." Both officers approached the vehicle when the defendant was seated in the front seat behind the wheel of the car. One of the officers then told defendant he was parked in a "tow-a-way zone" and that they had a report he was selling drugs. Defendant jumped out of the car, began yelling profanities, claimed that he was being "set up" and a crowd collected, mostly from a neighboring bar, whereby the officers called for assistance and arrested the defendant for "disorderly conduct."

Defendant argues that at the hearing there was insufficient proof of the commission of the violation of disorderly conduct. This Court finds, however, that there was sufficient probable cause for the arrest, based upon the uncontroverted testimony as to the officers' observations. (People v. Oden, 36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188).

A third police officer, officer Enright, who assisted in the arrest, drove the vehicle in question from the "tow-a-way zone" to police headquarters, after obtaining the keys to the car from the defendant. While officer Strand was questioning the defendant at police headquarters for the purpose of processing, Officer Miller searched the blue Ford. During this period of time the defendant was in custody and there was no evidence that he had been given any Miranda warnings. The search of the car was made in the police parking lot and was being conducted as part of the regular procedures of the police department to inventory and preserve the defendant's property. As the search was being conducted, Officer Miller was listing the property on a property form. He examined the interior of the automobile, the front seat, back seat, the glove compartment and opened the trunk with the keys previously obtained from the defendant. Under the front seat of the vehicle he found a quantity of what appeared to be marijuana, in the trunk he found a spare tire and a suitcase. He opened the suitcase and discovered some clothing, a bag containing some pills and hypodermic needles and a syringe. After inventorying everything he left the clothing, suitcase and other personal property in the trunk, took out the needles and syringe and locked the trunk. Officer Miller then showed the marijuana, hypodermic needles and syringe to Officer Strand in the presence of the defendant. Whereupon, the defendant stated that the marijuana was his but the needles were not his and belonged to a friend.

The first question to which the Court will address itself is that of dismissing or reducing the charge of possession of marijuana. The defendant argues that as of July 29, 1977, the effective date of the Marihuana Reform Act of 1977, he was no longer subject to punishment under section 220.03 of the New York Penal Law, since the new law would make him subject to ex post facto legislation or, at the most, the new legislation should be applied retrospectively to all pending actions and the charge should be reduced to a violation under Article 221.

The defendant is charged with Disorderly Conduct, Criminal Possession of a controlled substance in the seventh degree, in violation of section 220.03 P.L. and criminal possession of a hypodermic instrument in violation of 220.45 P.L. for acts committed on July 14, 1977.

The Marihuana Reform Act of 1977 was adopted by the legislature on June 29, 1977 under Chapter 360 of the 1977 Session Laws. Section 12 of that Chapter provides, "This act shall take effect on the thirtieth day after it shall have become a law and shall be applicable to acts committed on or after such date." (emphasis added).

The principles relating to retrospective application of new law was set forth in Stovall v. Denno, 388 U.S. 293, 298, 87 S.Ct. 1967, 18 L.Ed.2d 1199, which has been cited in two cases in New York: People v. Mallette, 50 A.D.2d 654, 374 N.Y.S.2d 837 and People v. Simone, 48 A.D.2d 497, 370 N.Y.S.2d 583. The findings are that errors impinging upon questions of whether the defendant is guilty are susceptible of correction retroactively where they remedy the procedures for determining the truth of the facts. The criteria to be taken into consideration are: (a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on old standards and (c) the effect on the administration of justice that a retrospective application of the new standards would have. (See Desist v. U. S., 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248; People v. Morales, 37 N.Y.2d 262, 372 N.Y.S.2d 25, 333 N.E.2d 339). Retrospective application of a change in the law brought about by a court decision was originally used by the courts upon a theory that Judges were deemed not to make law but to pronounce law which was always there but was waiting to be correctly stated. The application requested here is based upon a change brought about by a new statute which provides for its effective date.

The statute in question is not an ex post facto law since it does not impose a punishment for past acts (People v. Vernon, 83 Misc.2d 1025, 373 N.Y.S.2d 314; Deveau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109). It is also not a remedial...