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Drug crimes are punished severly

A Lawyer said that, defendant was indicted with another person, both charged with the A III felony of acting in concert in the sale of $20.00 worth of cocaine. Defendant was arrested eight months after the alleged sale. During the course of an omnibus hearing, the evidence revealed that the co-defendant had been described in Police Reports, written shortly after the alleged sale, as a man five feet ten inches tall and weighing 165 pounds. The arresting officer testified that the co-defendant, then present in Court was six feet two inches tall and was of slender build. At the conclusion of the hearing, the co-defendant waived a jury trial and was acquitted by this Court on the ground that the gross misdescription created a reasonable doubt that he was the person involved.

A rep said that, at a pre-trial conference between the attorney for the defendant, the Assistant District Attorney and the Court, defense counsel stated that his client wished to plead guilty to a violation of Section 220.34 of the Penal Law, a Class “C” felony, in order to avoid the risk of going to trial on the A III Indictment and face a mandatory life sentence in the event of conviction. The Assistant District Attorney informed the Court that there was no evidence that the defendant was a large scale seller, that he was 25 years of age and had never been arrested before, that he was charged with acting in concert in the sale of $20.00 worth of cocaine possession and he, the Prosecutor, believed the ends of justice and protection of the public would be met if the Court considered a sentence of probation. The Court indicated that it agreed with the Prosecution’s assessment of the case, and approved the plea bargain.

A Criminal Lawyer said that, during the formal proceeding of entering the plea, the Court inquired of the defendant, if he was guilty of cocaine possession on the date charged in the Indictment. The defendant replied that he had never possessed or sold any drugs on that date or any other date. The Court then terminated the proceeding and stated to the defendant that a man who protests his innocence should not plead guilty to any drug crime, but should go to trial. The defendant proceeded to trial, which resulted in a verdict of guilty of the A III felony sale of cocaine. A few days after the verdict, Juror Number Six contacted the Assistant District Attorney and expressed his concern about the verdict reached, in light of the mandatory nature of the punishment, which was not known to him at the time of the verdict. The juror asked to speak to the Court, and again, in the presence of the attorneys for the Prosecution and Defense, expressed his anguish at the nature of the mandated punishment in this case. On the date of sentence, the Probation Report attested to the defendant’s previous good character and the fact that the defendant had never been in any conflict with the law before the instant case. Defense counsel moved to have the sentencing provisions of Section 70.00 of the Penal Law declared unconstitutional as applied to the instant defendant.

The issue in this case is whether the sentencing provisions of Section 70.00 of the Penal Law declared as applied to the defendant is unconstitutional.

The Court said that the Court of Appeals had occasion to review the constitutionality of the new Drug Laws of 1973. In sustaining the mandatory sentencing provisions as legislatively valid judgments and not in contravention of the cruel and unusual punishments clauses of the Federal and State Constitutions, the Court set forth the factors it weighed in reaching its conclusion as follows: “The gravity of the offense is obviously key, as is the gravity of the danger which the offender poses to society. Given grave offenses committed or committable by dangerous offenders, the penological purposes of the sentencing statutes, whether they be the rehabilitation or isolation of offenders or the deterrence of potential offenders, will be decisive.”

The Broadie Court found that drug offenses are punished more severely and inflexibly than almost any other offense in the State, however, because of the Legislature’s rational view of the gravity of the offenses, the danger posed by the offenders and the penological purposes to be served, “the punishments imposed for these crimes in the present state of man’s knowledge were not grossly disproportionate or cruel and unusual in the constitutional sense.” The Court’s holding explicitly grounded its finding of constitutionality upon a rational relationship between the gravity of the offense and the penological purpose of the Legislature. The Court, after rejecting retribution or stimulus to vigilantism as valid penological purposes, analyzed the mandatory penalties in terms of the valid legislative concerns for rehabilitation, deterrence and isolation.

In noting the high rate of recidivism among drug crime abusers, the Court held that the Legislature had the right to discount rehabilitation as a factor in shaping sentencing policy since it thought that prior efforts at rehabilitation had failed; it found therefore that the Legislature could reasonably shift the emphasis to other penological purposes, namely, isolation and deterrence. In passing upon the constitutional challenge in the instant case, this Court accords the legislative judgment great weight and respectful consideration and assumes the constitutional validity of the mandatory life sentence. If a finding is to be made otherwise, the defendant bears a heavy burden of disproving the presumption of legislative reasonableness.

The United States Supreme Court has adopted the position that in examining challenged legislation, the courts are required to review developments which may have changed the validity of information before the Legislature at the time of the statutory enactment.

In terms of the instant case, the Court found that the mandated life imprisonment sentence in all A III drug crime felonies not only unusual when compared to sentences imposed for similar crimes in other jurisdictions; it also found the sentence severe when compared to sentences for crime within the State, since only Murder in the First Degree is punished more severely. The Court found the legislative scheme did not contravene the cruel and unusual punishment clauses of the State and Federal Constitutions because it found the legislative classification was enacted to enforce the penological goals of deterrence and isolation. Empirical data contained in the Final Report of the Joint Committee on New York Drug Law Evaluation and other authorities cited supra show that the New Drug Laws have had no effect on drug crime trafficking or drug abuse in this State. The amendment of Section 70.00, Sub. 4 of the Penal Law is a legislative declaration that individualized punishment of a year or less, in appropriate cases, protects the public interest where small scale sellers of narcotics are brought before the bar of justice.

When one lays the mandatory life imprisonment provision of the 1973 Narcotics Laws besides the discretionary sentencing mandated under the 1976 amendment to Section 70.00, Sub. 4 of the Penal Law, one realizes that the exact same crime is involved the sale of $20.00 worth of cocaine the only difference in utilization is that life imprisonment is mandated if the defendant exercises his constitutional right to go to trial and loses, while probation may be imposed if he pleads guilty. Where the defendant professes his innocence or where the evidence of guilt is seriously arguable, does the State in plea bargaining negotiations have a legitimate inters in laying on the bargaining table a choice of plea plus probation or trial plus mandatory life? Can one truly say that a defendant who opts for the plea plus probation has made a “voluntary choice” or has the State so loaded the dice that the hazard of the roll chills the free exercise of the trial alternative?

The Legislature’s presumption in 1973, that the new Narcotic Laws would serve the valid penological ends of deterrence and isolation, has been rebutted on the facts in this case. The imposition of a life sentence upon the defendant, Chris Askew, following his conviction, after trial, of the A III sale of cocaine is grossly disproportionate to the sentence he would have received if he had pleaded to the class “C” felony under Criminal Procedure Law 220.20 as amended in 1976. This Court cannot find any valid penological purpose to be served in inflicting on this defendant the second most severe punishment in this jurisdiction, for the same offense the Legislature decreed a sentence of one year or less would adequately protect society had this defendant pleaded rather than chosen a trial alternative.

Accordingly, the Court held that the infliction of punishment, particularly where its severity serves no valid penological purpose is cruel and inhuman. In imposing sentence on the defendant herein, this Court will be guided by the standards of Section 70.06, Subdivision 4 of the Penal Law. Based on this defendant’s prior good record, the small amount of cocaine possession involved, letters of commendation received by this Court from people in his community and this Court’s judgment that an indeterminate sentence is not necessary and would be unduly harsh; this Court imposes a definite sentence of one year.

The legislative scheme did not contravene the cruel and unusual punishment clauses of the State and Federal Constitutions because it found the legislative classification was enacted to enforce the penological goals of deterrence and isolation. If you are involved in a similar case, seek the legal opinion of a New York Criminal Attorney and New York Drug Attorney at Stephen Bilkis and Associates.

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