People v. Suitte

• Decision Date: 22 November 1982
• Citation: 90 A.D.2d 80,455 N.Y.S.2d 675
• Parties: The PEOPLE, etc., Respondent, v. James SUITTE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 675

455 N.Y.S.2d 675

90 A.D.2d 80

The PEOPLE, etc., Respondent, v. James SUITTE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 22, 1982.

Robert W. Farrell, Mineola (Barry C. Weiss, Mineola, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Judith R. Sternberg, Mineola, of counsel, Susan J. Manne, Mineola, on the brief), for respondent.

Before LAZER, J.P., and O'CONNOR, THOMPSON and NIEHOFF, JJ.

LAZER, Justice Presiding.

The defendant has pleaded guilty to criminal possession of a weapon in the fourth degree, a class A misdemeanor. The sentence we review consists of 30 days of imprisonment and three years of probation, the jail time to be a condition of and to run concurrently with the period of probation. Execution of the sentence has been stayed pending this appeal. In the course of a typically eloquent opinion dissenting from our vote to affirm, Justice O'CONNOR concludes that the custodial portion of the sentence is an abuse of discretion, castigates as futile the vast national emphasis upon incarceration as a means of punishment, attacks the resultant pressures that a vengeance-ridden society imposes on the judicial system and condemns the crushing effects of those pressures upon those unduly punished as a consequence. In our colleague's view, the sentence "borders on the obscene." Although we share Justice O'CONNOR's concern over the state of the nation's processes, we still cannot agree that the sentence imposed represents excessive punishment or abuse of sentencing discretion.

When arrested in January, 1981, for unauthorized use of a motor vehicle, based on what seems to have been a misunderstanding, James Suitte was found to possess a loaded Sterling .25 calibre automatic pistol. Although Mr. Suitte had registered the gun in North Carolina when he acquired it there in 1973, he carried it unlicensed in this State for the seven and one-half-year period preceding his arrest. College educated for three years, Mr. Suitte is 46 years old, has been married for 25 years, and has two children, aged 14 and 21 years. He has never before been convicted of a crime. Although he admits he was aware of New York's gun licensing requirement, he claims that the gun was necessary for protection because the tailor shop he operates is located in a high crime area of the Bronx.

The plea of guilty was a bargained one. Originally charged with the class D felony of criminal possession of a weapon in the third degree, Mr. Suitte was permitted to plead to the misdemeanor of possession in the fourth degree. In imposing sentence under the new gun statute and its mandatory one year imprisonment provision (Penal Law, §§ 70.02, 70.15)--publicized in the State as the "toughest gun law in the country" (L.1980, ch. 233, eff. Aug. 12, 1980; Governor's Memorandum, McKinney's 1980 Session Laws of New York, pp. 1857-1858)--the sentencing Judge found the mandatory one year jail provision too severe. He noted, however, "the Legislature, the community and indeed this Court concerned with the proliferation of guns and the possession of guns by individuals in the community, regardless of the reasons, and we have such a possession in this case." He then exercised his discretion under the statute and imposed a jail sentence of 30 days plus three years probation. The jail portion of the sentence is the focus of the appeal.

The new gun statute has substantially increased the penal sanctions for possession and sale of illegal weapons. The major change from previous law is the mandatory imposition of a prison sentence of at least one year upon conviction of possession of a loaded weapon outside the home or place of business. The legislation contains additional procedures, however, which, inter alia, permit imposition of a lesser sentence upon conviction of possession in the fourth degree if "the court having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that such sentence would be unduly harsh" (Penal Law, § 70.15, subd. 1). This mitigation inquiry relative to possession in the fourth degree is limited to individuals who have not been convicted of either a felony or a class A misdemeanor within the preceding five years (Penal Law, § 70.15, subd. 1). Other provisions of the new law prohibit preindictment plea bargaining, restrict post-indictment plea bargaining (CPL 220.10, subd. 5, par. cl. ), and expedite the processing of licensing requests (Penal Law, § 400.00, subd. 4-a).

The statute is an obvious expression of the State's reaction to the current avalanche of gun-related crimes. In approving the law, Governor Carey proclaimed:

"We must bring an end to the proliferation of illegal handguns in New York and the intolerable assaults on law enforcement officers and law-abiding citizens. We must let it be known that New York has the toughest gun law in the country and that it will be strictly enforced. We are determined to rid our streets of those who would do violence to its citizens" (Governor's Memorandum, McKinney's 1980 Session Laws of N.Y., p. 1858).

The Governor viewed the amended gun law as even more stringent than that of Massachusetts, which had been considered the strictest in the country (see "Carey Signs a Bill Controlling Guns; Calls it 'Toughest' ", New York Times, June 14, 1980, I, p. 1, col. 6). Mayor Koch termed the legislation "a significant first step in the fight to remove illegal handguns from the streets of our city" (id., p. 27, col. 4).

Early returns on the law--later ones are not available--indicate that applications for gun licenses have increas (see "Record Number Ask Gun Permits in New York City", New York Times, March 16, 1981, I, p. 1, col. 5), fewer gun possession cases have been reduced to misdemeanors, and sentences of incarceration have been imposed in more instances than before the law (see New York State Division of Criminal Justice Services, February, 1982 Report, pp. 122-123). Slightly more than half of the adults convicted of gun possession received at least the mandatory one-year minimum (id., p. 111).

Whatever its ultimate success in a nation bedeviled by handguns, there can be no doubt that the State's 1980 legislation represents a vivid manifestation of public policy intended to make illegal possession of guns a serious criminal offense accompanied by the strong prospect of punishment by penal servitude. While we note our colleague's negative view of the wisdom of the statute, it is not for the court to pass on the wisdom of the Legislature, for that body "has latitude in determining which ills of society require criminal sanctions, and in imposing, as it reasonably views them, punishments, even mandatory ones, appropriate to each" (People v. Broadie, 37 N.Y.2d 100, 117, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. den. 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287). We turn, then, to the role of the judiciary in enforcing this public mandate that the crime of illegal possession of a gun be impressed upon all as a serious offense against society.

It is scarcely worth repetition to observe that a sentencing determination is a matter committed to the exercise of the sentencing court's discretion, for it is that court's primary responsibility (People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864; People v. Notey, 72 A.D.2d 279, 282, 423 N.Y.S.2d 947). Sentencing involves consideration of the crimes charged, the particular circumstances of the offender, and the purposes of a penal sanction (People v. Farrar, supra; People v. McConnell, 49 N.Y.2d 340, 346, 425 N.Y.S.2d 794, 402 N.E.2d 133). "It is the sensitive balancing of these * * * criteria in the individual case that makes the process of sentencing the most difficult and delicate decision that a Judge is called upon to perform" (People v. Notey, supra, p. 283, 423 N.Y.S.2d 947).

As has been oft-stated, the four principal objectives of punishment are deterrence, rehabilitation, retribution and isolation (People v. Notey, supra, p. 282, 423 N.Y.S.2d 947; Perlman & Stebbin Implementing an Equitable Sentencing System: The Uniform Law Commissioners' Model Sentencing & Corrections Act, 65 Virginia L.Rev. 1175, 1176; Pugsley, Retributivism: A Just Basis for Criminal Sentences, 7 Hofstra L.Rev. 379, 381; Crump, Determinate Sentencing: The Promises and Perils of Sentence Guidelines, 68 Ky.L.J. 1, 28). While deterrence includes individual deterrence directed at preventing the specific offender from repeating the same or other criminal acts, it also includes general deterrence which aims to discourage the general public from recourse to crime (Campbell, Law of Sentencing, § 5; Mueller, Sentencing, Process & Purposes, p. 48; Carlson, The Dilemmas of Correction, p. 29). Rehabilitation is directed, of course, at reform of the individual, while retribution includes "the reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves," community condemnation, and the community's emotional desire to punish the offender (see Note, Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study, 69 Yale L.J. 1453, 1455). Isolation serves simply to segregate the offender from society so as to prevent criminal conduct during the period of incarceration (see Pugsley, Retributivism: A Just Basis for Criminal Sentences, 7 Hofstra L.Rev. 379, 387). It is clear that the principal aim of the 1980 gun legislation is general deterrence.

The most difficult problem confronting the sentencing judge is determination of the priority and relationship between the objectives of punishment (see People v. Notey, 72 A.D.2d 279, 283, 423 N.Y.S.2d 947, supra ), a matter of considerable and continuing debate (see, e.g., Crump, Determinate Sentencing: The Promises and Perils of Sentence Guidelines, 68 Ky.L.J. 1, 27). Inevitably, there are bound to be differences of opinion in the relative values assigned these...