People v. Wixson

• Citation: 79 Misc.2d 557,360 N.Y.S.2d 818
• Parties: The PEOPLE of the State of New York v. William WIXSON, Defendant.
• Decision Date: 12 November 1974
• Court: New York Supreme Court

Page 818

360 N.Y.S.2d 818

79 Misc.2d 557

The PEOPLE of the State of New York v. William WIXSON, Defendant.

Supreme Court, Criminal Term, Westchester County, Part I.

Nov. 12, 1974.

Stephen J. Pittari, White Plains (Donald N. Silverman, Far Rockaway, of counsel), for defendant.

Carl A. Vergari, Dist. Atty. (James M. Rose, White Plains, of counsel), for plaintiff.

Louis J. Lefkowitz, Atty. Gen. (Barbara Shore Resnicoff of counsel), intervenor in person.

JOSEPH D. QUINN, Jr., Justice.

Defendant has been indicted on one count of criminal sale of a controlled substance in the second degree, in violation of § 220.41(3) of the Penal Law, on one count of criminal possession of a controlled substance in the second degree, in violation of § 220.18(3) of the Penal Law, and on one count of criminal possession of a controlled substance in the sixth degree, in violation of § 220.06(1) of the Penal Law. The indictment charges that each of these offenses was committed on May 14, 1974. It is claimed in that pleading that the illicit substance involved in each instance was the stimulant amphetamine.

Under New York's revised drug laws, which became effective on September 1, 1973, each of the first two crimes charged is classified as an A--II felony, and the third is graded as a class D felony.

Prior to the commencement of this action, and in 1969, defendant was convicted of burglary in Connecticut and was imprisoned there under a sentence for a minimum term of three years and a maximum term of five years. In 1971, defendant, after being convicted of burglary in the third degree in New York, was imprisoned under a sentence in which the maximum term was fixed at four years and no minimum term was imposed.

Earlier in this action, defendant brought on an omnibus motion seeking varied relief. In the fifth branch of that application, he challenged the constitutionality of § 70.06 of the Penal Law and § 220.10(6)(b) of the Criminal Procedure Law, insofar as those sections apply to him as a second felony offender, upon the grounds that they violate his '(r)ights under both the New York and United States Constitutions relative to ex post facto laws, double jeopardy, due process, equal protection and cruel and unusual punishment.' In the sixth branch, he attacked the constitutionality of §§ 220.06, 220.18 and 220.41 of the Penal Law, upon the grounds '(t)hat the penalties imposed by said statutes constitute cruel and unusual punishment and deny defendant due process and equal protection of law.'

In an order entered on September 12, 1974, this court held determination of those branches in abeyance, directing, sua sponte, that the Attorney General be first brought in under the provisions of § 71 of the Executive Law to defend the constitutionality of the several areas of the Penal Law and the Criminal Procedure Law which had been subjected to attack. Since then, the Attorney General has intervened, the constitutional questions presented here have been briefed and argued by the Attorney General and the District Attorney, and the remaining branches of the motion have been decided.

In undertaking the chore of ruling upon the constitutionality of the various statutory sections assailed here, we turn initially to examine defendant's contention as to the invalidity of §§ 220.06, 220.18 and 220.41 of the Penal Law.

The trouble with this claim is that, in spite of the burden of demonstrating invalidity beyond a reasonable doubt which is the lot of all who would have the courts strike down legislation on constitutional grounds (People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205), defendant has precious little to say about what he thinks are the shortcomings in these protested sections. Beyond proffering the unadorned statement in his notice of motion and demand for relief to the effect that the punishments prescribed for the drug crimes classified in the respective sections do violence to his due process and equal protection rights under the Fourteenth Amendment of the Federal Constitution and that they are inconsistent with the Eighth Amendment proscription against the imposition of cruel and unusual punishments, he has not lifted one finger to substantiate or even elaborate on his claim of constitutional infirmity in this respect. This is so, despite the fact that he was given the opportunity to submit a brief and to participate in oral argument.

In his brief and on oral argument, the District Attorney complained, and rightly so, of defendant's failure to spell out the premises upon which he relied.

Even so, defense counsel appeared when argument was heard, and, although he elected not to argue, he did inform the court that, insofar as the attack on §§ 220.06, 220.18 and 220.41 of the Penal Law was concerned, he relied upon the same grounds urged in support of the attack upon the constitutionality of §§ 220.16(1) and 220.39(1) of the Penal Law in People v. Gardner, 78 Misc.2d 744, 359 N.Y.S.2d 196, which we recently decided. To give defendant at bar every benefit of the doubt, and to preserve his point for appeal, we accommodate him to the extent of allowing him to incorporate the Gardner arguments here. Of course, we reject those same arguments on the same basis that we did in that case.

Defendant's second challenge has as its target the constitutionality of § 70.06 of the Penal Law, the second felony offender statute.

Effectively, § 70.06, which became law on September 1, 1973 (L.1973, ch. 277, § 9; amd. L.1973, ch. 278, § 8; L.1973, ch. 1051, § 3), dictates increased state prison sentences for persons convicted of a felony, Other than a class A felony, in New York if, within ten years prior to commission of the present offense, they have been subjected to conviction for a felony in New York or, in any other jurisdiction, for an offense for which a sentence to a term of imprisonment in excess of one year was imposable, regardless of whether such sentence of imprisonment was actually imposed. (Penal Law, § 70.06, subd. 1(b) (i).)

As has been noted earlier, defendant has a prior felony conviction in New York and a prior conviction in Connecticut for which a sentence of three to five years was imposed. He is presently charged with the commission of two class A--II felonies and one class D felony in this jurisdiction.

Under the new statute which he attacks, he has no exposure to increased punishment by reason of either of his predicate felony convictions if he is convicted under either or both of the A counts of the indictment which has been found against him, since the section has no application to current A felony convictions. However, if he is convicted under the third or D count, or, if he is convicted of lesser included felonies, graded at a crime classification lower than A, under one or both of the first two counts, he must be subjected to second felony offender treatment for the present offenses.

Defendant's second challenge is hardly better mounted than his first one. Inasmuch as it amounts to a general attack on the theory of recidivist statutes, whereby additional punishment is inflicted upon habitual and repeated offenders, there is more than ample precedent to sustain the validity of enactments under that ancient concept. (Cf. People v. Starks, 78 Misc.2d 87, 355 N.Y.S.2d 906; Rosenblatt, New York's Drug Laws and Sentencing Statutes, 1973, ch. 6, p. 51 et seq.) There is no need to belabor the point further here.

As a matter of fact, it would appear that defendant does not seriously question the soundness of § 70.06 in terms of his New York predicate. His entire assault seems to be postulated in terms of the use of his Connecticut conviction as a predicate. Any doubt that this was the case was removed when, at the time of argument, defense counsel informed the court that he bottomed his challenge to the statute squarely upon Mr. Justice Burton Roberts' recent opinion in People v. Mazzie, 78 Misc.2d 1014, 358 N.Y.S.2d 307. In Mazzie, Justice Roberts held that the application of § 70.06 is unconstitutional when a foreign predicate conviction was for an offense which would not have been a felony under New York law. Although there is no indication here that defendant intends to dispute his New York predicate, even the 'possibility of collateral consequences' of the Connecticut conviction overcomes any issue of mootness which might otherwise arise here insofar as the attack on the constitutionality of § 70.06 is concerned. (Cf. Mancusi v. Stubbs, 408 U.S. 204, 206--207, 92 S.Ct. 2308, 33 L.Ed.2d 293; Marple v. Manson, D.C., 373 F.Supp. 757, 759--762.)

Moreover, this court cannot bring itself to follow the holding in Mazzie, and since it would seem that the decision there might be viewed by some as having application to some areas of the persistent felony offender law (Penal Law, § 70.10), (id., p. 310, n. 1), and since defendant, if convicted under the instant indictment, might be subjected to treatment under that latter statute, we will proceed to dispose of the issue of the validity of the provisions of § 70.06 which deal with foreign predicate convictions.

It is evident from even a cursory reading of the Mazzie decision that Justice Roberts had no quarrel with the theory of recidivist statutes. He conceded that '(t)he multiple felony offender provisions of former Penal Law, Sections 1941 and 1942, which were not adopted in the Revised Penal Law (of 1967), were consistently held to not be violative of any constitutional rights' and he acknowledged that '(s)erious recidivism is clearly a proper basis for increased penalties.' (358 N.Y.S.2d, at p. 310.) But, he pointed out that '(t)hese earlier statutes, however, required that in order for a prior conviction to constitute a predicate felony for purposes of punishment, it had to be for a crime 'which, if committed within this state, would be (a felony)", and he observed that the '(o)ffender's prior conduct was thus measured...