People v. Salerno

• Citation: 185 N.Y.S.2d 169,17 Misc.2d 535
• Parties: PEOPLE of The State of New York v. Nicholas SALERNO, Defendant.
• Decision Date: 27 April 1959
• Court: New York Court of Special Sessions

Page 169

185 N.Y.S.2d 169

17 Misc.2d 535

PEOPLE of The State of New York v. Nicholas SALERNO, Defendant.

Court of Special Sessions of City of New York, New York

County, Part II.

April 27, 1959.

Edward J. Hale, New York, for defendant, for the motion.

Frank S. Hogan, Dist. Atty., New York County, New York City (Richard A. Nachman, Asst. Dist. Atty.), New York City, in opposition to motion.

BENJAMIN GASSMAN, Justice.

In a two count Information, the defendant is charged with (1) illegal possession of narcotic durgs, and (2) illegal possession of a hypodermic syringe and a hypodermic needle. The defendant moves to dismiss the Information on the ground that Section 1751-a of the Penal Law (which makes it a misdemeanor to illegally possess narcotic drugs) and Section 1747-d, subd. 3 (which makes it a misdemeanor to illegally possess narcotic implements) are both unconstitutional.

In support of his argument that Section 1751-a is unconstitutional, defendant cites People v. Hicks, 3 A.D.2d 829, 161 N.Y.S.2d 835, and People v. Baker, 7 A.D.2d 707, 179 N.Y.S.2d 892. In the Hicks case, the Appellate Division wrote no opinion, merely stating in its decision that the judgment of conviction of the defendant (on charges of illegal possession of narcotic drugs and narcotic implements) was reversed because 'on neither count was there sufficient evidence to establish each of the elements of the crime'. However, defendant points out that the same court, in the Baker case, in affirming the defendant's conviction, distinguished it from the Hicks case, stating [7 A.D.2d 707, 179 N.Y.S.2d 893]: 'In Hicks, the evidence also indicated that there was nothing more than a trace of narcotic in the wad of cotton that was found--insufficient to make a finding that the defendant had possession * * * of a narcotic drug'. It is the defendant's contention that the evidence in the case at bar consists of a wad of cotton containing but a trace of heroin, and that therefore, the first count in the Information should be dismissed on the authority of the Hicks case.

Whether the evidence in the case at bar is similar to that in the Hicks case or whether it is similar to that in the Baker case cannot be decided on a motion in advance of the trial. It must await determination after a trial, when all of the evidence has been submitted. In any event, no Constitutional question is presented with respect to Count One, and the motion with respect to that Count is denied.

The Constitutional attack on Count 2, which was framed under Section 1747-d, subd. 3 of the Penal Law, presents a more serious question. That section provides:

'It shall be unlawful for any person or persons, except a duly licensed physician, dentist, veterinarian, nurse, podiatrist, hospital, sanitarium or other medical institution, or a resident physician or interne of a hospital, sanitarium or other medical institution, or those engaged in the regular business of dealing in medical, dental or surgical supplies, operating a clinical laboratory, maintaining a registered pharmacy or drug store, or maintaining an undertaking establishment, to have under control or possess, a hypodermic syringe or hypodermic needle, or any other instrument or implement adapted for the administering of narcotic drugs which other instrument or implement is possessed for that purpose, unless such possession by obtained upon a valid written prescription from, and such use be authorized or directed by, a duly licensed physician or veterinarian. For the purposes of this subdivision no such prescription shall be valid, which has been outstanding for more than one year'.

Defendant argues that the above cited subdivision is unconstitutional because--whereas possession of any 'other instrument or implement' is not a crime unless it is proven (a) that it is adapted for the administering of narcotic drugs, and (b) that the defendant possessed it for that purpose--possession of a hypodermic syringe or a hypodermic needle is made a crime without such proof. The statute, according to the defendant, violates his right to due process of law, because he is deprived of the presumption of innocence (Sec. 389, Code of Criminal Procedure) until proven guilty beyond a reasonable doubt. He urges that this statute is arbitrary and unreasonable and is an abuse of the police power of the State.

Courts of original jurisdiction are reluctant to declare unconstitutional a statute enacted by the Legislature in the exercise of its police power. It is a cardinal principle of construction 'that legislation should not be declared unconstitutional unless it clearly appears to be so all doubt should be resolved in favor of the constitutionality of an act'. Johnson v. City of New York, 274 N.Y. 411, 9 N.E.2d 30, 38. It is well established that a court of original jurisdiction should never 'declare a law unconstitutional unless' such conclusion is inescapable. People ex rel. New York Central & H. R. R. Co. v. Woodbury, 74 Misc. 130, 140, 133 N.Y.S. 135, 142.

If the statute upon its face appears to be reasonable and just and appropriate, and if it appears that its natural consequences will be in the direction of the betterment of public health and welfare, it is the duty of the court to pronounce it constitutional. People v. C. Klinck Packing Co., 214 N.Y. 121, 108 N.E. 278; Holden v. Hardy, 169 U.S. 366, 395, 18 S.Ct. 383, 42 L.Ed. 780. 'Or to state the rule in converse form, before we can pronounce such a statute * * * unconstitutional, we must be able to see that there is no real, substantial evil of public interest to be guarded against or that there is no reasonable relation between the evil and the purported cure or prevention offered by the statute'. People v. Susi, Mag.Ct., 23 N.Y.S.2d 812, 818; Booth v. People of State of Illinois, 184 U.S. 425, 22 S.Ct. 425, 46 L.Ed. 623; Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 31 S.Ct. 259, 55 L.Ed. 328.

It is a matter of common knowledge that drug addiction has become a serious problem, not alone in the City of New York, but throughout the country. Testimony given before the United States Senate Committee on the Judiciary of the 84th Congress and testimony given before the New York State Joint Legislative Committee on Narcotic Study has established that 'there has been a steady increase in narcotic arrests in the last several years. In 1954, New York City had 4,136 arrests of narcotic violators not previously known to the authorities, 4,400 in 1955 and 4,768 in 1956. In the first nine months of 1957, there were 4,171 narcotic violators arrested. * * * The evidence shows that the number of addicts in New York has grown each year and each year there is a substantial number of new addicts entering the drug user population'. (See Second Interim Report of the State of New York Joint Legislative Committee on Narcotic Study, Legislative Document (1958) No. 16, at page 15).

Opium, from which heroin is derived, was introduced in America in the beginning of the 19th century. In 1804, morphine was discovered. A derivative of opium, morphine was twice as toxic, and until 1843, was either chewed, sniffed or smoked. In 1843, with the discovery of the hypodermic needle, addicts began to administer narcotic drugs through intravenous injection. In 1898, a German chemist, Dressen, extracted a derivative from opium and morphine-base, called heroin. Tests have shown that heroin is far more addicting and four times as toxic as morphine. The Joint Legislative Interim Report discloses that approximately 87 per cent of the known drug users use heroin, and that there are currently 21,184 drug users in New York City alone, who are known to the authorities. To this number must be added countless numbers not known to the authorities. That report also estimates that 40 per cent of the country's entire addict population is in New York City.

As a menace to society the addict not only infects himself but usually introduces others to the habit. The prolonged and continuous use of drugs is a costly practice. It swirls its victims into a maelstrom that flings them from drugs to crime, and then back to drugs again. The addict must have drugs and for lack of funds to pay for them, he turns to crime. Both males and females find themselves involved in thefts, larcenies, prostitution, shop-lifting, burglary, robbery and even murder.

To cope with the spreading narcotic evil, the Congress of the United States, in 1956, increased the penalty for narcotic violators, and the Legislature of the State of New York, in the exercise of its police power, enacted Section 1751-a of the Penal Law, and amended the former Section 1747-c, by renumbering it as 1747-d. Subdivision 3 of that Section was amended by Chap. 692, Laws of 1956, and, as...