People v. Vernon

• Decision Date: 30 September 1975
• Citation: 373 N.Y.S.2d 314,83 Misc.2d 1025
• Parties: The PEOPLE of the State of New York v. Lawrence VERNON, Defendant.
• Court: New York Supreme Court

Page 314

373 N.Y.S.2d 314

83 Misc.2d 1025

The PEOPLE of the State of New York v. Lawrence VERNON, Defendant.

Supreme Court, New York County, Part 101.

Sept. 30, 1975.

William Gallagher and Thomas Geiger, New York City, of counsel, for defendant.

Sterling Johnson, Jr., Sp. Asst. Dist. Atty. (Allen Alpert, of counsel), for plaintiff.

ROBERT J. SISE, Justice:

The defendant is charged with the crime of Criminal Possession of a Weapon in the Third Degree under section 265.02(1) of the Penal Law.

He moves to preclude his being considered a second felony offender upon conviction. The People oppose defendant's motion.

For the purpose of this motion, the facts as set forth in the defendant's affidavit are not disputed and are the facts herein found by the Court:

On November 16, 1974 the defendant was arrested for possession of an unloaded pistol. Since he had previously been convicted of a crime, defendant was indicted for Criminal Possession of a Weapon in the Third Degree, a class D felony. Defendant had been convicted of an E felony in Supreme Court, Queens County in 1973.

Defendant contends that using the same crime which elevates the charge against him to a felony as the basis for considering him a second felony offender would be violative of his constitutional rights. Defendant offers no statutory or case authority for this proposition, but asserts that the application of the predicate felony statute in this situation would deprive him of due process of law and constitutes cruel and unusual punishment, double jeopardy and an Ex post facto use of a penal statute.

Section 265.02 of the Penal Law provides as follows:

'A person is guilty of criminal possession of a weapon in the third degree when:

(1) He commits the crime of criminal possession of a weapon in the fourth degree . . ., and has been previously convicted of any crime . . ..'

This section, although effective September 1, 1974, represents no change from the prior law enacted in 1967 which also raised to the felony level a misdemeanor committed by one previously convicted of a crime (See Arnold D. Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 265.02, p. 110).

The statute is supported by the strong presumption of constitutionality afforded legislative enactments (Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539; People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202; Nettleton Co. v. Diamond, 27 N.Y.2d 182, 315 N.Y.S.2d 995, 261 N.E.2d 106; People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338). This presumption is also applicable to the predicate felony statute which defendant contests. That statute, Penal Law section 70.06, states, in pertinent part, as follows:

'. . . (a) A second felony offender is a person who stands convicted of a felony defined in this chapter, other than a class A felony, after having previously been subjected to one or more predicate felony convictions.'

As the court interprets defendant's argument, he contends that neither of the above statutes standing alone is on its face unconstitutional. Rather, defendant asserts that when combined and applied to his situation, this statutory scheme brings about an unconstitutional result.

At the outset this court disagrees with the claim that sentencing defendant as a second felony offender would constitute cruel and unusual punishment. Taking into consideration the gravity of the offense, the maximum possible sentence which defendant could receive, if convicted, is not so grossly disproportionate to the crime charged as to render it unconstitutional, if indeed it is at all disproportionate (People v. Broadie, supra, p. 111, 371 N.Y.S.2d p. 475, 332 N.E.2d p. 341; People v. Brown, 46 A.D.2d 255, 362 N.Y.S.2d 257). In addition, the penalties authorized under the predicate felony statute do not comprise punishment of a status, since a defendant subject to its provisions has not been placed in a position which he was powerless to change (Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2445, 20 L.Ed.2d 1254).

Nor does the court find merit in the contention that the predicate felony statute as applied here is an Ex post facto law. Application of the statute to this defendant does not result in inflicting greater punishment than the law affixed to the crime when committed (U.S.Const., Art. I, Secs. 9, 10; People v. Starks, 78 Misc.2d 87, 355 N.Y.S.2d 906; People v. Adcock, 4 Misc.2d 758, 162 N.Y.S.2d 540; People v. Donovan, 32 Misc.2d 173, 223 N.Y.S.2d 252; People v. Warden, 43 Misc.2d 109, 250 N.Y.S.2d 15) and, therefore, the traditional standard has been observed. The mark of an Ex post facto law is the imposition of punishment for past acts (De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109). In this case, both the elevation of the crime from misdemeanor to felony and the application of the predicate felony statute comes about as a relevant incident to a regulation of a present situation (De Veau v. Braisted, supra, p. 160, 80 S.Ct. 1146).

Defendant further argues that using the prior crime to elevate the charge to a felony and to have the defendant considered a predicate felon with the attending plea bargaining restrictions and mandatory jail sentence is violative of due process. Due process demands that a law be not unreasonable or arbitrary and that it be reasonably related and applied to some actual and manifest evil (Pratt v. Tofany, 37 A.D.2d 854, 326 N.Y.S.2d 257). Both the weapons statute and the predicate felony law as applied to defendant fulfill a clear legislative purpose. The classification to which the weapons statute is aimed, namely, all those convicted of a crime, is not overly broad and bears a rational relationship to a legitimate state interest (People v. Butler, 46 A.D.2d 422, 362 N.Y.S.2d 658). Treating defendant as a second felony offender after being convicted of this crime also fulfills a compelling state purpose and any limitation on plea bargaining could not render the statutes unconstitutional (People v. Butler, supra, p. 426, 362 N.Y.S.2d p. 662). Due process affords protection from arbitrary governmental action (Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435). There is no...