People v. Weiss

• Decision Date: 09 July 1974
• Citation: 358 N.Y.S.2d 267,78 Misc.2d 792
• Parties: The PEOPLE of the State of New York, v. Richard Steven WEISS, Defendant.
• Court: New York County Court

Page 267

358 N.Y.S.2d 267

78 Misc.2d 792

The PEOPLE of the State of New York, v. Richard Steven WEISS, Defendant.

Suffolk County Court.

July 9, 1974.

Henry G. Wenzel III, Dist. Atty. of Suffolk County, Riverhead, for the People; Michael R. Greene, Asst. Dist. Atty., of counsel

John F. Middlemiss, Jr., Riverhead, for defendant; Donald H. Silverman, of counsel.

MEMORANDUM

OSCAR MUROV, Judge.

The defendant is accused by indictment with various crimes associated with a controlled substance including the crime of Criminal Sale of a Controlled Substance in the Third Degree. He now moves for dismissal of this, the fifth count of the indictment, on the ground that Penal Law § 70.00, which provides the penalty for such crime, is unconstitutional, and alternatively, for dismissal of this count in the interest of justice.

Defendant's application is based upon the affidavit of one Serafina Corsello, a psychiatrist, who has examined the defendant and determined that the defendant is emotionally disturbed and in need of therapeutic intervention. The psychiatrist feels that unless the defendant receives appropriate treatment, suicide would be a distinct possibility. It is the doctor's opinion that the intense psychiatric treatment and drug rehabilitation the defendant needs would not be available in a penal institution. The instant section, therefore, as defendant contends, is unconstitutional as to him in that it provides for a mandatory minimum period of incarceration of one year and constitutes cruel and unusual punishment.

The People cite People v. Hoffman, 76 Misc.2d 564, 351 N.Y.S.2d 87, in opposition to this motion. In Hoffman, the defendant leveled his attack upon the constitutionality of Article 220 of the Penal Law on the ground that cocaine, the substance the sale and possession of which the defendant was indicted for, was improperly classified by the legislature. It was the defendant's contention that the improper classification violated the defendant's right to equal protection.

The Court rejected this argument finding a rational and reasonable basis for the classification of cocaine and for the regulation of the sale and possession and use of the substance. Much was said concerning the presumption of constitutionality of legislative enactments, the Court concluding its decision with the following quotation of the opinion of the Court in Cullum v. O'Mara, 43 A.D.2d 140, 350 N.Y.S.2d 162:

'* * * 'We begin by noting that a strong presumption of constitutionality attaches to all legislation (Wasmuth v. Allen, 14 N.Y.2d 391, 397, 252 N.Y.S.2d 65, 69, 200 N.E.2d 756, 758; Defiance Milk Prod. Co. v. Du Mond, 309 N.Y. 537, 540, 132 N.E.2d 829, 830) and that there is a further presumption that the Legislature has investigated and found the facts necessary to support the legislation (I.L.F.Y. Co. v. Temporary State Housing Rent Comm., 10 N.Y.2d 263, 269, 219 N.Y.S.2d 249, 252, 176 N.E.2d 822, 825; Lincoln Bldg. Association v. Barr, 1 N.Y.2d 413, 153 N.Y.S.2d 633, 135 N.E.2d 801). Those who attack the constitutionality of legislative enactments must demonstrate their invalidity beyond a reasonable doubt (People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205). The enactments will be struck down only as a last and unavoidable resort (Nettleton Co. v. Diamond, 27 N.Y.2d 182, 193, 315 N.Y.S.2d 625, 632, 264 N.E.2d 118, 123; Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 541).

. . . since only a clear violation of the Constitution will justify the court's overruling of the legislative will (Farrington v. Pinckney, 1 N.Y.2d 74, 78, 150 N.Y.S.2d 585, 591, 133 N.E.2d 817, 821; Matter of Ricker v. Village of Hempstead, 290 N.Y. 1, 5, 47 N.E.2d 417, 418). " (People v. Hoffman, supra, 76 Misc.2d p. 570, 351 N.Y.S.2d pp. 92--93.)

Research by this writer discloses substantial doubt as to the constitutional invalidity of the instant enactment. The section under attack provides for a mandatory minimum sentence of one year imprisonment. Federal courts across the breadth of the nation have upheld mandatory minimum terms of greater duration.

Gallego v. United States, (1960, C.A.9 Ariz.) 276 F.2d 914 (minimum mandatory sentence of 5 years for first offense conviction of unlawful importation of marijuana); Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964, cert. den. 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (minimum mandatory sentence of 10 years for narcotics violations involving possession of heroin); United States v. Chow (1968 C.A.2 N.Y.) 398 F.2d 596 (minimum mandatory sentence of 5 years on conviction of substantive and conspiracy counts relating to transactions in opium); Daut v. United States (1968, C.A.9 Ariz.) 405 F.2d 312 (minimum mandatory sentence of 5 years for unlawful importation of marijuana), cert. den. 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114; United States v. Drotar (1969, C.A.5 Fla.) 426 F.2d 914 (minimum mandatory sentence of 5 years upon second conviction for possession of marijuana), vacated on other grounds 402 U.S. 939, 91 S.Ct. 1628, 29 L.Ed.2d 107; United States v. Del Toro (1970, C.A.5 Fla.) 426 F.2d 181, cert. den. 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 60 (minimum mandatory sentence of 5 years for first offender convicted of selling heroin); United States v. Lozaw (1970, C.A.2 N.Y.) 427 F.2d 911 (minimum mandatory sentence of 5 years for knowingly concealing marijuana and conspiring to do so); United States v. Davila (1970, C.A.9 Cal.) 428 F.2d 465 (minimum mandatory sentence of 5 years for unlawful importation of marijuana); United States v. Avey (1970, C.A.9 Ariz.) 428 F.2d 1159 (minimum mandatory sentence of 5 years for knowingly concealing marijuana with knowledge it had been unlawfully imported), cert. den. 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 139; United States v. Sherman (1970, C.A.9 Ariz.) 430 F.2d 1402 (minimum mandatory sentence of 5 years for illegal concealment and transportation of marijuana), cert. den. 401 U.S. 908, 91 S.Ct. 865, 27 L.Ed.2d 805, reh. den. 401 U.S. 1015, 91 S.Ct. 1249, 28 L.Ed.2d 552.

In the examination of a statute under attack, the courts attempt to determine if punishment is cruel, degrading and so wholly disproportionate to the offense committed as to shock the moral sense of the community (People v. Gonzales, 25 Ill.2d 235, 184 N.E.2d 833, cert. den.372 U.S. 923, 83 S.Ct. 740, 9 L.Ed.2d 728; People v. Jackson, 166 Ill.App.2d 304, 253 N.E.2d 527; State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46). In Chaffin, the court stated that it is generally accepted that punishments which are prohibited by the Eighth Amendment are limited to torture and other barbarous punishments, degrading punishments unknown at common law, and punishments which are so...