The defendant moves to dismiss the indictment against her claiming that the statutes upon which the charges are founded are unconstitutional. Defendant is alleged to have sold over an ounce of a substance containing methadone to an undercover officer. This alleged sale has given rise to the three charges contained in the indictment; one count relates to the alleged sale and the others to the defendant’s possession immediately prior to the sale.
A New York Criminal attorney said that the thrust of the defendant’s claim with respect to the use of the ‘aggregate weight’ of the substance possessed and sold as the basis for determining the degree of offense charged in the first and second counts is that it creates irrational distinctions between similar kinds of conduct and imposes unequal punishments upon offenders who have committed virtually identical illegal acts.
It is undisputed that the defendant possessed and sold over an ounce of a mixture containing 30 milligrams of methadone in solution with over one ounce of an orange juice preparation. The defendant contends that it is unconstitutional to hold her criminally liable for the possession and sale of more than one ounce where the total controlled substance present constitutes approximately one-tenth of one percent of the aggregate weight of the total mixture or solution.
Prior to 1950, the sale of any quantity of narcotic drug was treated as a felony and carried a sentence of up to ten years imprisonment. All possessory offenses, regardless of the quantity involved, were misdemeanors, subject to a maximum sentence of one year.
The Revised Penal Law of 1967 eliminated the weight-presumptions from the possession-with-intent-to-sell offense and contained no weight-predicated sale offense. Bare possession of more than one-eighth ounce of heroin, morphine or cocaine was made a class D felony and more than one ounce of cannabis, morphine, heroin or cocaine was made a class C felony.
In 1969, the Revised Penal Law was amended to create class A and class B felonies based on the sale or possession of aggregate weights of more than 16 or 8 ounces of heroin, morphine or cocaine. Except for marihuana, no other drug was subject to a sale or possession offense based on weight.
Major revision of the penal law provisions with respect to all drugs was proposed by The Temporary State Commission to Evaluate the Drug Laws, a Commission established by the Legislature and charged with the responsibility for recommending changes in law. The Commission’s proposals with respect to recodification of the public health law with conforming changes in the penal law were enacted in 1972. Although the Commission proposals with respect to substantive changes in the penalty provisions were rejected by the Legislature, the recommendations contained in the Commission’s Interim Report provided the conceptual format for the vastly increased penalties enacted during the 1973 Session of the Legislature.
To some extent the challenge to the use of the aggregate weight or volume of the narcotic And the non-narcotic diluent is similar to that made in a plethora of cases.
To Be Cont…
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