People v. Venable

• Decision Date: 27 November 1974
• Citation: 46 A.D.2d 73,361 N.Y.S.2d 398
• Parties: The PEOPLE of the State of New York, Respondent, v. Arthur Lee VENABLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 398

361 N.Y.S.2d 398

46 A.D.2d 73

The PEOPLE of the State of New York, Respondent, v. Arthur Lee VENABLE, Appellant.

Supreme Court, Appellate Division, Third Department.

Nov. 27, 1974.

Daniel G. Moriarty, Albany, for appellant.

Ralph W. Smith, Jr., Dist. Atty. (Peter L. Rupert, Albany, of counsel), for respondent.

Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch and Peter Joseph Dooley, Albany, of counsel), appearing pursuant to Executive Law, § 71.

Before HERLIHY, P.J., and SWEENEY, KANE, MAIN and REYNOLDS, JJ.

HERLIHY, Presiding Justice.

Upon this appeal it is not disputed that the defendant on September 26, 1973 sold white powder to a policeman and that the envelope contained heroin.

The defendant contends firstly that the sentence imposed herein is unconstitutional as being cruel and unusual punishment in violation of the Federal and State Constitutions. Secondly, the defendant contends that the trial court committed reversible error in regard to a note from the jury stating it was unable to agree.

I

As to the alleged error of the trial court, at sentencing the court stated that it had received a note from the jury stating it was unable to agree without advising the defendant or his counsel of such note and that its sole response was to send the jury to dinner. The record discloses that the jury retired after the charge to commence deliberations at 4:05 P.M. and went todinner at 6:35 P.M. It would seem academic that a trial court could properly direct a jury to continue deliberation after such a short period of time. Of course, the trial court did not so direct, but simply ignored the note. The record does not disclose any possible prejudice to the defendant in regard to the note from the jury and no objection or request for a new trial was made at sentencing on the basis of the note. Any possible error was waived by the defendant and, in any event, any such supposed error would not justify a reversal of the conviction.

II

The defendant did not raise any constitutional objection to the imposition of sentence at sentencing and did not at any time question the constitutionality of subdivision 1 of section 220.39 of the Penal Law in the proceedings before the trial court. As a consequence, we are without the benefit of a decision by the Albany County Court on this issue in this particular appeal.

However, the parties to the appeal have brought to our attention a recent decision of the Monroe County Court (People v. Mosley, 78 Misc.2d 736, 358 N.Y.S.2d 1004) which held that the mandatory imposition of an indeterminate sentence from one year to life pursuant to section 70.00 of the Penal Law as required for violation of subdivision 1 of section 220.39 of the Penal Law was cruel and unusual punishment, and, therefore, unconstitutional. The parties have also brought to the attention of the court a more recent decision by the Supreme Court in the County of Westchester (People v. Gardner, 78 Misc.2d 744, 359 N.Y.S.2d 196) and another by the Albany County Court (People v. Hollingsworth, Co.Ct., 79 Misc.2d 468, 360 N.Y.S.2d 765 (1974)) both of which find that the classification of the instant crime as a class 'A' crime and the punishment imposed does not constitute cruel and unusual punishment.

The decision of Mr. Justice Quinn, Jr. in People v. Gardner (supra) adequately establishes that there is no basis for considering the present criminal sanctions in this State as related to drug offenders to be in any way violative of the constitutional prohibitions against cruel and unusual punishment.

It is well established that the wisdom, necessity or efficacy of legislation are not matters to be considered by the courts. (8 N.Y.Jur., Constitutional Law, § 72, pp. 599, 602.) Moreover, the presumption of constitutionality is one of the strongest presumptions, not readily overcome (Weems v. United States, 217 U.S. 349, 366, 30 S.Ct. 544, 54 L.Ed. 793; Wasmuth v. Allen, 14 N.Y.2d 391, 252 N.Y.S.2d 65, 200 N.E.2d 756; Wiggins v. Town of Somers, 4 N.Y.2d 215, 173 N.Y.S.2d 579, 149 N.E.2d 869). (See also Lawton v. Steele, 119 N.Y. 226, 232, 233, 23 N.E. 878.)

Section 220.39 of the Penal Law states:

A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells: 1. a narcotic drug.

Subdivision 2 of section 70.00 imposes the mandatory maximum sentence:

The maximum term of an indeterminate sentence shall be at least three years and the term shall be fixed as follows: (a) For a class A felony, the term shall be life imprisonment.

The New York State Constitution provides:

Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained. (N.Y.Const., art. I, § 5.)

Similarly, the Eighth Amendment of the United States Constitution has been applied to the states through the Fourteenth Amendment (Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 8 L.Ed.2d 758; People v. Davis, 33 N.Y.2d 221, 226, 351 N.Y.S.2d 663, 306 N.E.2d 787), and contains the following language:

Excessive bail shall not be required, nor excessive fines be imposed, nor cruel and unusual punishments inflicted.

There is no single standard for determining what is cruel and unusual punishment, and its scope has been found to be difficult to define (Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 2 L.Ed.2d 630). Inherent in the determinations of cruel and unusual punishment is the concept that 'a precept of justice that punishment for crime should be graduated and proportioned to offense' (Weems v. United States, Supra, 217 U.S. p. 367, 30 S.Ct. p. 549). Weems also concluded that punishment "in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment" (Id. p. 368, 30 S.Ct. p. 549).

The New York State Court of Appeals has recently discussed the origin of the Eighth Amendment and its purpose:

Doubtless enacted to preclude the barbarities that had marred the administration of the English criminal law--burnings, brandings, quarterings, disembowelings and the like--the amendment has come to mean much more. Prohibited are not only inhuman methods of punishment, but punishment disproportionate to the offense (Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (opn. of the Chief Justice)) * * * (People v. Davis, Supra, 33 N.Y.2d p. 226, 351 N.Y.S.2d p. 667, 306 N.E.2d p. 789).

In Furman v. Georgia (408 U.S. 238, 258, 92 S.Ct. 2726, 33 L.Ed.2d 346), Mr. Justice Brennan in a concurring opinion recognized that the standard applicable under the Eighth Amendment is one 'not susceptible to precise definition', but he recommended that a standard should be developed from an analysis of several factors (Id., p. 282, 92 S.Ct. 2726; see also, Hart v. Coiner, 483 F.2d 136, cert. den. 415 U.S. 983, 94 S.Ct. 1454, 39 L.Ed.2d 495; People v. Mosley, 78 Misc.2d 736, 358 N.Y.S.2d 1004, Supra).

Consequently, the following factors should be considered in determining whether the defendant's punishment of a mandatory maximum sentence of life imprisonment is constitutionally disproportionate to the crime of the criminal sale of a controlled substance in the third degree: (1) the nature and gravity of the offense (Furman v. Georgia, Supra, 408 U.S. p. 325, 92 S.Ct. 2726 (Marshall, J., concurring)); (2) the legislative purpose behind the punishment (Id., p. 300, 92 S.Ct. 2726 (Brennan, J., concurring)); (3) a comparison of how the defendant would have been punished in other jurisdictions for the same offense (Hart v. Coiner, Supra, 483 F.2d 136 p. 141); and (4) a comparison of punishment in the same jurisdiction for other types of crimes (Weems v. United States, Supra, 217 U.S. p. 381, 30 S.Ct. 544).

The essential argument of the defendant is that the present scheme which precludes plea bargaining and must result in lifetime surveillance of a citizen whether in or out of prison is actually the imposition of one of the severest penalties possible for a 'minor' offense. It is to be noted that there is no reason to believe that any but the most hardened anti-social (meaning anti-law abiding) individuals will actually be incarcerated for life. Plea bargaining is still possible, within the framework of the statute, as to the determination of the length of the minimum sentence.

It is well known that prior to the drafting of the present penalties the Legislature and Executive of this State thoroughly investigated what had become generally referred to as the drug problem in New York State. Furthermore, the social repercussions of the existence of the market was established as being an impetus for the rapidly rising rate of all types of such criminal activity as would result in the acquisition of money by users for satisfaction of drug craving. The fact that ultimate consumers of the illicit drugs were often accidently killing themselves by overdose was and is well known. In People v. Junco (43 A.D.2d 266, 268, 351 N.Y.S.2d 1, 3) the court said: "Nothing is more destructive to a community's well being than widespread drug abuse. More young people in our city die from drug abuse than from any other single cause. Hard drugs are indeed a cancer to our community. Society has mounted a massive effort to blot out this destructive evil." The insidious radiation of criminal activity from anyone illicitly possessing the hard drugs requires a strong deterrent whether or not the individual convicted is or was able to perceive such radiation from his apparently isolated conduct.

To be sure, the best possible attack on the drug problem would have been the confiscation of such contraband at the point where it entered New York State or the United States. However, such an intensive attack was rendered impossible as a matter of practicality in terms of manpower and obviously...