In this drug crime case, defendant brought on a motion for re-sentence as a first, rather than as a second, felony offender with respect to a judgment of a Court, convicting him, on his own plea of guilty to the crime of Attempted Grand Larceny in the Second Degree, and sentencing him, as a second felony offender, to a term of two and a half years to four years.
A New York Drug Crime Attorney said that the former conviction, relied upon as a basis for defendant’s status as such second felony offender, occurred in the United States District Court for the Southern District of New York upon defendant’s conviction by verdict of a jury, on four separate crimes as charged in the indictment. Judgment was entered. The respective counts and the sentences thereunder were as follows:
1. Unlawfully selling a narcotic drug to a person contrary to law in that the package containing it did not have the required Internal Revenue Stamps. Sentence thereon was to a term of five years.
2. That the defendant made the said sale of the same narcotic drug to the same person knowing that it was not pursuant to a written order on a form issued in blank for that purpose by the Commissioner of Internal Revenue. Sentence thereon was also to a term of five years.
3. That the defendant did conceal, sell and facilitate the transportation, concealment and sale of said narcotic drug with the knowledge that it had been imported and brought into the United States in violation of law. Sentence thereunder was to six years.
4. That the defendant and another had conspired to violate United States Code, Title 26, Sections 1043 and 1044 and Title 21, Sections 173 and 174, to make the sales in the manner specified in the first three counts. Sentence upon this count was to two years. All the sentences were to run concurrently with each other and concurrently with those imposed under another indictment.
The Federal statutes involved have been construed as proper statutes for the basis of sentence as a multiple felony offender under New York Law. This decision in a former case was not overruled by the principle enunciated in court rulings.
The issue to be resolved in this case is whether the defendant can be sentenced as a multiple felony offender within the meaning of criminal law.
In order to sentence a defendant as a multiple felony offender under section 1941 of the Penal Law it must appear that defendant’s previous conviction in the foreign jurisdiction would have been a felony if committed in this State.
The question presented is whether any of the four counts of the Federal indictment, under which the defendant was convicted and sentenced, were crimes which would have been felonious if committed in this state so as to render applicable section 1941 of the Penal Law.
Section 173 of Title 21 of the U.S.C.A. prohibits, with certain exceptions, the importation of narcotic drugs. Section 174, as far as pertinent, provides: ‘Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug or conspires to commit any of such acts in violation of the laws of the United States, shall be’ fined and imprisoned. The crimes mentioned in this section have been declared in criminal law to be separate and distinct crimes. Petit larceny was not charged.
Title 26, U.S. Code, Section 2553, makes it unlawful for any person to purchase, sell, dispense, or distribute any of the drugs mentioned in section 2550 except in the original stamped package or from the original stamped package. Title 26, U.S. Code, Section 1043, 1934 Ed. is now contained in Title 26, U.S. Code, Section 2553.
Title 26, U.S. Code, Section 2554, provides: ‘It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs mentioned in section 2550(a) except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for the purpose by the Secretary’. Title 26, U.S. Code, Section 1044, 1934 Ed. is now contained in Title 26, U.S. Code, Section 2554.
Title 18, U.S. Code, Section 88 relates to the crime of Conspiracy to commit any offense against the United States, or to defraud the United States in any manner or for any purpose.
Section 1751 of the Penal Law at the time of this conviction, provided that any person who shall ‘peddle, sell, barter, or exchange’ any narcotic drug shall be guilty of a felony related to a drug crime.
While it appears that the only crime mentioned in section 174 of Title 21, which is a felony under the New York law, is that of a ‘sale’, it likewise is clear that it would also be a felony, like robbery, under our law to sell, barter or exchange a narcotic drug in violation of section 1044 of Title 26.
The defendant was convicted under counts one and two as charged in the Federal indictment, in each of which counts a specific sale is alleged in violation of the Statutes, and he received a prison sentence under these specific counts in addition to the sentences imposed under counts three and fourth.
Insofar as counts one and two of a drug crime are concerned there is no doubt that the conviction thereon referred to a specific sale as there was nothing in the language contained therein that would permit any other construction read in the light of the statute violated such a prevailed in jurisprudence.
In a case, the single Utah statute created the crime of Burglary whether the defendant broke and entered or merely entered. When therefore, the defendant pleaded guilty as charged to an indictment which alleged a forcible breaking and entering, he pleaded guilty upon a statute under which he would have been equally guilty of the misdemeanor of unlawful entry had that been charged against him in the Utah indictment.
In another case, the Supreme Court found that the single Delaware statute also created the crime of burglary by either breaking or entering or merely entering. The Maryland statute merely required a breaking without an entry. In either instance they did not correspond to our burglary statute.
The operative and material facts then, in the information under consideration, are that relator broke and entered a building with intent to commit a felony therein. There are no allegations that he broke out of the building after having entered with such intent. Hence, there is no surplusage as to the operative facts which constitute a felony in New York as well as in Florida. It cannot be assumed that relator may have been convicted of the crime which would be a misdemeanor in New York, since no such facts are alleged in the Florida information to which he pleaded guilty.
It appears in the case at bar there is no surplusage in either count one or count two in the Federal indictment charging a sale of the drug, and the jury rendered a verdict of guilty, in respect to these two specific counts in addition to counts three and four.
In respect to another case, the fault in the prior Pennsylvania conviction was that the defendant was at that time a child under the age for which he could not be convicted of a crime. It appears that because of this fact that the Court of Appeals held the former conviction to be inapplicable upon the ground that it does not sufficiently appear that the crime to which appellant pleaded guilty in New Jersey would have been a felony if committed in this State. In other words, the judgment and sentence was as applicable to the misdemeanors as it was to the felonies
.
In the present case each Federal statute creates a separate crime and the judgment imposes a separate sentence for each crime of which the defendant was convicted. In examining the Federal indictment and judgment, as we are permitted to do, it becomes at once demonstrated that the defendant in the Federal Court was found guilty of the misdemeanor of Conspiracy to Sell Narcotic Drugs under the fourth count, and he likewise was found guilty of and was punished for the felony of Selling Narcotic Drugs under counts one, two and three. The four counts of the Federal indictment are so interwoven in relation to the time of the commission of each of the crimes on the same day, and the same amount of the same narcotic drug, namely, diacetyl morphine hydrochloride that it leaves no doubt that the jury in rendering its verdict of guilty on count three included the sale of this particular narcotic drug as it did in counts one and two where the sale of the same amount of the same narcotic drug is specifically alleged. In other words, the acts constituting the sale arose out of the same transaction, committed in different ways, as alleged in the said three counts.
The Court has held that ‘When we are unable to determine the exact nature of the crime charged by reference to the statute alone either because the statute fails to give a substantive definition of the crime or because a single statute presents several distinct and alternative grounds for conviction, it becomes necessary to examine the essential operative allegations comprising the charges actually preferred against the defendant in the indictment,
information, or specification in order to ascertain with precision the elements of the crime of which he has been convicted. The crime cannot be enlarged or expanded by allegations of the specific acts performed, but the charges may serve to limit or narrow the basis of the conviction.
In another case, it was held that the appellant argues that the acts constituting the crime of which the defendant was convicted in the Federal Court do not constitute a crime under our State laws. It is clear enough that both the federal and the State offenses have in common the act of a sale of narcotics. The State law prohibits the sale outright unless the defendant can prove that it was done in accordance with certain specified exceptions. The Federal Law, while not forbidding the sale outright, punishes the sale if it is made without compliance with certain regulations. The Federal and State exceptions overlap and complement each other. The effect of the two laws is to punish the same conduct and this difference in verbal approach is the only distinction that can be made between the two laws. In effect, they are the same.
The past case ‘involved a true sale of heroin, reiterated the Court of Appeals in another case. In the latter case the court said:
We must refer to the indictment and the statute under which the indictment was drawn to determine what the operative and material facts were, and then we must compare these operative and material facts to our own statutes to ascertain whether or not it has application.
Accordingly, the Court denied the motion to resentence the defendant in all respects.
Even a person was accused of possession of drugs, his rights as an accused should be protected. Here in Stephen Bilkis and Associates, our New York Criminal lawyers are proficient in dealing with drug cases. This is to protect their rights and defend them in all the stages of the case. Contact us now to receive a reliable advice.