People v. Starks

• Decision Date: 17 April 1974
• Citation: 78 Misc.2d 87,355 N.Y.S.2d 906
• Parties: The PEOPLE of the State of New York v. Gregory Curtis STARKS, Defendant.
• Court: New York Supreme Court

Page 906

355 N.Y.S.2d 906

78 Misc.2d 87

The PEOPLE of the State of New York v. Gregory Curtis STARKS, Defendant.

Supreme Court, Criminal Term, Queens County, Part VI.

April 17, 1974.

William Gallagher, for defendant.

Eugene Hilsenrath, Asst. Dist. Atty., for plaintiff.

MEMORANDUM

GEORGE J. BALBACH, Judge.

The defendant, in a wide-sweeping motion, attacks the constitutionality of the new second felony offender statute (Penal Law, § 70.06).

Defendant herein was indicted in Queens County on a charge of grand larceny in the second degree, criminal possession of stolen property in the first degree, unauthorized use of a vehicle and violation of Vehicle & Traffic Law, section 509.

On March 25, 1974 the People filed a felony offender statement in accordance with Criminal Procedure Law, section 400.21, alleging that the defendant was convicted of robbery on November 3, 1971 in the Supreme Court, Queens County, and sentenced to the state reformatory.

Thereafter, on March 27, 1974 the Court held a preliminary hearing to grant the defendant the right to challenge any allegation contained in this statement. At that time the defendant admitted the validity of the prior conviction but disputed the law itself, maintaining that it violated his constitutional rights.

The defendant challenges the law on three specific grounds:

(1) That it is fundamentally unfair due to the fact that it discriminates against prior offenders and violates the due process laws of the Constitution.

(2) That said statute violates the ex post facto doctrine of the United States Constitution in that it increases punishment for a prior conviction.

(3) That the law by its very nature imposes a cruel and inhuman punishment in violation of the Eighth Amendment.

Turning to the first contention, defendant is, in effect, attacking the theory of recidivist statutes by alleging that increased punishment creates two classes of defendants. In striking at this doctrine, defendant is attacking a solidly entrenched legal principle with almost two centuries of precedent in this State. Historically, the doctrine of inflicting additional punishment upon repeated offenders was first enacted in New York as early as 1796 (see Graham v. West Virginia, 224 U.S. 616, 622, 32 S.Ct. 583, 56 L.Ed. 917) and reached savage fruition under the Penal Code of 1888 (§§ 688--692) when the law was extended to provide additional penalties for past misdemeanors. This recidivist doctrine was carried over into the habitual criminal section (§ 1020) of the Penal Law of 1909 and out prior Penal Law of 1942 (§§ 940, 941--The Baumes Laws). Ultimately, the habitual offender doctrine found its way into the revised Penal Law in September 1967 under section 70.10 as the persistent felony offender. It is to be noted that that section gave the Court discretion in applying additional punishment.

The defendant now challenges the present version of this law which is section 70.06 and entitled 'Sentence of imprisonment for second felony offender'. Under this law the Court has no discretion but must impose mandatory sentence of imprisonment.

Considering the first contention, a review of the law indicates that the Courts have solidly upheld the validity of the increase punishment doctrine, ruling that since the law applies equally to 'a class of persons convicted and sentenced to the penitentiary,' it does not violate due process (Graham v. West Virginia, supra, p. 630, 32 S.Ct. p. 588; cf. Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683). This doctrine has been affirmed by our own Court of Appeals in People v. Wilson, 13 N.Y.2d 277, 281, 246 N.Y.S.2d 608, 611, 196 N.E.2d 251, 253, when it stated 'subsequent offender statutes . . . violate no constitutional rights since they do no more than describe circumstances under which increased punishment may be imposed by a sovereignty'.

Nor did the new statute impose additional punishment for a past crime as defendant contends for his second point. The facts indicate that defendant was convicted of robbery on November 3, 1971 and sentence passed. That sentence will not be affected in any manner by the new statute. If defendant receives increased punishment, it is purely as a result of his present crime and does...