People v. Spencer
| Decision Date | 12 September 1974 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Preston SPENCER, Defendant. |
| Court | New York Supreme Court |
The defendant was indicted by an Erie County Grand Jury for criminal possession and sale of a dangerous drug in the third degree in violation of §§ 220.16 and 220.39 of the Penal Law. He has made an omnibus motion for discovery and inspection, a bill of particulars, delivery of all evidence favorable to him (i.e., 'Brady' materials) and dismissal of the indictment on a number of grounds including the alleged unconstitutionality of §§ 65.00 and 70.00 of the Penal Law.
First, the defendant's motion for discovery and inspection is in reality a blanket request for the court to order the prosecution to open its file for inspection by the defendant. Article 240 of the Criminal Procedure Law does not establish an 'open-file' rule. Discovery in criminal proceedings is limited to those items listed in § 240.20 under the conditions set forth therein.
Names or statements of witnesses are not discoverable before trial. The right to obtain a prior statement of a witness accrues only after that witness has testified at trial. People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). The defendant has requested physical inspection and scientific testing of items of evidence by experts retained by the defendant. In view of the fact that this case involves possession and sale of a 'controlled substance', the court finds that the defendant's request for inspection and testing is reasonable and necessary for the preparation of his defense. The inspecting and testing is to be conducted pursuant to mutually agreeable terms and conditions established by the parties. There has been no such showing by the defendant with regard to the other numerous requests made in his motion. Accordingly, defendant's request for discovery and inspection is granted with respect to items 8(a), (b) and (c) contained in the notice of motion and denied with respect to all other requests in paragraph 8.
The defendant has also moved for a bill of particulars regarding his indictment. The purpose of a bill of particulars in a criminal proceeding is not to obtain evidence but rather to clarify certain matters set forth in the indictment, Criminal Procedure Law § 200.90(2) (McKinney's 1973); See, People v. Ricci, 59 Misc.2d 259, 298 N.Y.S.2d 637 (Oneida County 1969). Accordingly, the motion for a bill of particulars is denied with respect to items 1(b) through (e) in the notice of motion and granted with respect to all other items requested therein.
The defendant has also moved to dismiss the indictment in the interests of justice, on the grounds that there was legally insufficient evidence to sustain the charges therein and that §§ 65.00 and 70.00 of the Penal Law are unconstitutional. The court has examined the minutes of the proceeding before the Grand Jury and finds that there was evidence presented to sustain the charges in the indictment, and the motion to dismiss on the grounds of insufficient evidence is denied.
In support of his argument on the unconstitutionality of §§ 65.00 and 70.00 of the Penal Law, counsel for the defendant argues that the penalties upon conviction for an A--III felony are 'cruel and severe, excessive, unnecessary and disproportionate.' Furthermore, he contends that qualifications for probation eligibility for A--III felons give rise to the 'strong probability' that punishment will be inflicted arbitrarily.
The Eighth Amendment to the United States Constitution prescribes that 'Excessive bail shall not be required, nor excessive fines imposed, Nor cruel and unusual punishments inflicted' (emphasis added). That the Eighth Amendment is fully applicable to the states through the Due Process Clause of the Fourteenth Amendment is now well settled, See, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968). The question of what punishments are cruel and unusual, however, is not as well settled. From the constitutional convention to the present, reasonable and learned men have failed to produce an acceptable definition of, or even guideline for determining what is, cruel and unusual punishment, See, Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).
The defendant has been charged with two class A--III felonies under the amended Article 220 of the Criminal Procedure Law (McKinney's 1973). The penalties upon conviction for an A--III felony for one with no prior criminal record range from probation to a minimum of not less than one year nor more than eight years four months to a maximum of life imprisonment, Penal Law, §§ 65.00 and 70.00 (McKinney's). Probation upon conviction for an A--III felony can only be obtained if the defendant cooperates with the prosecution in the investigation, apprehension or prosecution of any person for an Article 220, I.e., drug related felony. Furthermore, probation for the A--III felony can be obtained only upon recommendation of the prosecution with a finding by the court, '(h)aving regard to the nature and circumstances of the crime and to the history, character and condition of the defendant . . . that:
(i) Institutional confinement of the defendant is not necessary for the protection of the public;
(ii) The defendant is in need of guidance, training or other assistance which, in his case, can be effectively administered through probation supervision;
(iii) The defendant has or is providing material assistance in the investigation, apprehension or prosecution of a person for a felony defined in article two hundred twenty or the attempt or conspiracy to commit any such felony; and
(iv) Such disposition is not inconsistent with the ends of justice. Provided, however, that the court shall not impose a sentence of probation in any case where it sentences a defendant for more than one crime and imposes a sentence of imprisonment for any one of the crimes, or where the defendant is subject to an undischarged indeterminate or reformatory sentence of imprisonment which was imposed at a previous time by a court of this state and has more than one year to run.' Penal Law § 65.00 subd. 1, par (b) (McKinney's 1973 Supp.)
The defendant contends that the punishment for an A--III felony is 'in effect' a life sentence, and that only large scale drug users and 'dealers' will be able to take advantage of the probation criteria. He further argues that the...
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