People v. Utica Daw's Drug Co.

• Citation: 16 A.D.2d 12,225 N.Y.S.2d 128
• Parties: , 4 A.L.R.3d 393 The PEOPLE of the State of New York, Respondent, v. UTICA DAW'S DRUG COMPANY, Inc., Appellant.
• Decision Date: 22 February 1962
• Court: New York Supreme Court Appellate Division

Page 128

225 N.Y.S.2d 128

16 A.D.2d 12, 4 A.L.R.3d 393

The PEOPLE of the State of New York, Respondent, v. UTICA DAW'S DRUG COMPANY, Inc., Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 22, 1962.

Abelove & Myers, Milton A. Abelove and Rocco S. Mascaro, Utica, of counsel, for appellant.

Arthur A. Darrigrand, Utica, for respondent.

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN and HENRY, JJ.

HALPERN, Justice.

This case presents the question of the proper way in which to deal with a claim by a defendant in a criminal case that the law has been enforced in a discriminatory manner against him in violation of the equal protection clauses of the State and Federal Constitutions.

The defendant maintains a drug store in the City of Utica, New York, which operates under a policy of selling at reduced prices, generally characteristic of stores known as 'cut-rate' stores or discount houses. The drug store is open on Sunday as all drug stores are permitted to be under the Sunday statute (Penal Law, § 2147). However, the items which drug stores are permitted to sell on Sunday are limited by the statute. The defendant was indicted for violation of the Sunday statute, it being charged that defendant on Sunday, December 18, 1960, 'unlawfully did publicly sell and expose for sale certain property, to wit, a pair of gloves, a doll, a brown belt and a drinking cup' in violation of section 2147 of the Penal Law.

The defendant did not contest the charge that the enumerated items had been sold and offered for sale in its store but contended that similar items had been sold and offered for sale on Sunday throughout the City of Utica and County of Oneida by all other drug stores and that other items, the sale of which on Sunday was prohibited by section 2147 of the Penal Law, had been regularly offered for sale and sold in other types of stores, without any attempt on the part of the public authorities to interfere with the sale or to prosecute the vendors. Only the defendant and one other company (not a drug store) also engaged in a discount operation were prosecuted. The defendant maintained that the prosecution was part of a discriminatory design aimed at the defendant and others engaged in the same type of 'cut-rate' operation. It maintained that the public authorities intentionally discriminated against that class and allowed others outside the class to continue to sell the forbidden items in violation of the Sunday law without molestation.

The trial court, with the acquiescence of the District Attorney, held that the defendant's contention, if established, would constitute a good defense to the criminal charge and it submitted the case to the jury accordingly. It left it to the jury to decide as a question of fact whether the defendant's proof established 'a clear and intentional discrimination against this defendant and against those in the same class.' At the request of the defendant, the court charged in language taken from Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220: 'Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.' The jury found the defendant guilty and this appeal followed.

Under the theory upon which the case was tried and submitted, the judgment of conviction cannot be permitted to stand. While the court accurately stated the principle by Yick Wo v. Hopkins and the cases which have followed it, it did not consistently apply the principle during the course of the trial. The defendant attempted to prove that 21 other drug stores in the City of Utica had engaged in offering for sale and in selling forbidden items on Sunday, December 18, 1960, and on other Sundays but the court sustained objections to most of the questions designed to elicit this proof. While the court allowed the defendant to prove that the stores had been open on Sunday, it sustained objections to questions as to the items which they had offered for sale on Sunday. The court also sustained objection to a question designed to show that a witness who was in the business of selling flags and decorations, advertised that his business was open on Sunday and that in fact he had sold flags and decorations on Sunday. Similar objections were sustained with regard to proof of sales on Sunday by various other types of stores.

It also appeared upon the trial that, after the defendant's arrest on December 18, the defendant engaged a private detective, formerly a member of the police department, to make an investigation on its behalf. On the following Sunday, December 25, he found that throughout the City of Utica in various drug stores which he listed by name and address, he was able to purchase and did purchase items forbidden for sale on Sunday under the statute. He also made purchases of forbidden items at smoke shops, news stores and grocery stores. The private detective then, at the request of the defendant's counsel, went to the Clerk of the City Court and offered to sign and swear to depositions with respect to each of the purchases made by him but the secretary of the City Court Judge who handled the matter declined to accept the depositions. Proof of these facts was admitted upon the trial. However, the court refused to allow the defendant's counsel to prove that he had subsequently written a letter to the Chief of Police of the city, a copy of which was marked for identification, advising of the purchases made by the investigator and offering to have the investigator sign and swear to depositions with respect thereto and requesting the Chief of Police to have officers in his department execute the necessary informations and obtain warrants of arrest. Objection to the admission of the letter into evidence was sustained and the Chief of Police was not allowed to testify with respect to its receipt and his failure to take action thereon.

It is thus apparent that while the court recognized the validity of the defense put forward by the defendant, it prevented the defendant from introducing material evidence which would have tended to support the defense. The court held that the evidence was irrelevant, upon the authority of People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184, app. dis. 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497, and other cases holding that nonenforcement of itself is not sufficient to establish discrimination. In so ruling, the court misconstrued the cases upon which it relied. While it is true that they held that mere nonenforcement is insufficient of itself to establish discrimination, they did not hold that proof of nonenforcement is not admissible in evidence, in a case in which the defendant asserts that there had been intentional discrimination. It is true that in order to find a violation of the constitutional guarantee, the trier of the facts must be satisfied that there was intentional discrimination, and not mere laxity in enforcement, but in the effort to persuade the trier of the facts of the truth of its ultimate contention, the defendant is entitled to introduce evidence of nonenforcement as relevant evidence bearing upon that contention. (People v. Harris, 182 Cal.App.2d Supp. 837, 5 Cal.Rptr. 852.)

We have therefore concluded that, upon the basis upon which the case was tried and submitted, the judgment of conviction must be reversed because of errors in the exclusion of evidence.

However, we believe that the entire approach to the problem, adopted by the trial court with the approval or acquiescence of the counsel on both sides, was erroneous and that a different approach should be followed, upon the remand of the case. The claim of discriminatory enforcement should not be treated as a defense to the criminal charge, to be tried before the jury and submitted to it for decision, but should be treated as an application to the court for a dismissal or quashing of the prosecution upon constitutional grounds. Insofar as a question of fact may be involved, the court should take the evidence in the absence of the jury and should decide the question itself. If the court finds that there was an intentional and purposeful discrimination, the court should quash the prosecution, not because the defendant is not guilty of the crime charged, but because the court, as an agency of government, should not lend itself to a prosecution the maintenance of which would violate the constitutional rights of the defendant.

As was said in a concurring opinion by Mr. Justice Roberts speaking for himself and for Mr. Justice Brandeis and Mr. Justice Stone in a different context: 'It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law * * * [It] should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention' and further: 'Recognition of the defense * * * as belonging to the defendant and as raising an issue for decision by the jury called to try him upon plea of the general issue, results in the trial of a false issue wholly outside the true rule which should be applied by the courts.' (Sorrells v. United States, 287 U.S. 435, 457-458, 53 S.Ct. 210, 218-219, 77 L.Ed. 413.)

These statements were made in a case involving the defense of entrapment. They are applicable a fortiori to the problem here presented. The approach for which Mr. Justice Roberts argued in his concurring opinion is much more appropriate to the type of problem with which we are here concerned than it is to a claim of entrapment. An argument can be that entrapment is a true defense...