The judgment convicted appellant of the sale (first count) and possession (second count) of a narcotic drug, marijuana, sentenced him to a term of five to seven years on the first criminal count and suspended sentence on the second count. The evidence produced by the prosecution indicated that appellant had sold marijuana to a person, who was employed by the Suffolk County Police Department at $75 a week to uncover evidence and otherwise entrap suspects in connection with the sale of narcotics. He had entered such employ around June, 1965, after he had been convicted of petty larceny and given a suspended sentence.
A Suffolk County Criminal Drug Crime lawyer said that the sale was allegedly made in September 1965, in West Sayville, Appellant testified on his own behalf and denied that he had sold any marijuana. Moreover, he maintained that he was at his karate school, at the time of the alleged sale. His alibi was a plausible one and, moreover, there was testimony from ostensibly disinterested witnesses tending to support it, thus creating a close question as to whether he was present at the time and place when and where the sale allegedly took place. Yet, there was not a single instruction to the jury on alibi. Appellant’s attorney requested an instruction thereon.
In court’s opinion, the response of the court was not only inadequate but also unclear. Under the circumstances of the case, the court should have charged substantially as follows: ‘If proof as to an Alibi raises a reasonable doubt in the minds of the jury as to whether the accused was present at the place and time where and when the crime was committed, the accused is entitled to have the defense fairly treated like any other defense and is not obliged to establish that it was impossible for him to commit the act charged. If under the evidence tending, if true, to prove an Alibi, it may have been Possible for the defendant to have committed the crime, it is still for the jury to determine whether, if the evidence is true, he availed himself of the possibility it afforded. If proof as to an Alibi, when taken into consideration with all the other evidence, raises a reasonable doubt as to the defendant’s guilt, he is entitled to an acquittal’. In other words, it is not necessary or required that a defendant should show that it was impossible for him to have committed the crime. Under the circumstances, and in the interests of justice, the conviction should be reversed and a new trial ordered.
In another criminal case, appeal by defendant from a judgment of the Supreme Court, Suffolk County, convicting him of criminal possession of marijuana in the first degree, upon a jury verdict, and imposing sentence as a second felony offender.
Judgment modified, as a matter of discretion in the interest of justice, defendant’s adjudication as a second felony offender and the sentence imposed thereon are vacated, and the case is remitted to the Supreme Court, Suffolk County, for a new determination as to defendant’s status as a second felony offender, and for resentencing. As so modified, judgment affirmed.
Although the People submitted three statements pursuant to CPL 400.21 alleging that defendant was a second felony offender, based upon his Florida state conviction, his Louisiana state conviction, and his conviction in the United States District Court, respectively, criminal defendant was adjudicated a second felony offender based solely upon his purported conviction in the United States District Court of possession of cocaine with intent to distribute.
In the proceedings before the trial court, defendant did not contest the allegation that he had been convicted of possession of cocaine with intent to distribute, and, therefore, is deemed to have admitted the same.
After defendant was sentenced as a second felony offender, he realized that his conviction in the United States District Court was not for possession of cocaine with intent to distribute, but, rather, was for the importation of cocaine. Thus, the People now acknowledge that “it would appear that the predicate felony conviction was improvidently entered based on” that conviction in the United States District Court.
In view of the foregoing, defendant’s adjudication as a second felony criminal offender and the sentence imposed thereon are vacated in the interest of justice, and the matter is remitted to the Supreme Court, Suffolk County, for a new determination as to whether defendant is a second felony offender based on either of his sister State convictions, and for resentencing.
We further note that defendant’s motion to set aside the jury verdict, based on hearsay allegations of juror misconduct, was properly denied without a hearing.
This is a consolidation of 6 criminal cases. In the first case, the defendant was indicted for burglary in the third degree and petit larceny. He entered a plea of guilty to attempted burglary in the third degree in satisfaction of both charges. At the plea hearing the Assistant District Attorney, in the presence of the defendant and his counsel, stated that the defendant was a prior felony offender. Both the court and the court clerk informed the defendant that because he had a prior felony conviction the court would be required to impose a minimum sentence of 1 1/2 to 3 years.
According to a Queens County Criminal lawyer, the defendant understood and pleaded guilty. At the sentencing hearing the court, after noting that the probation report stated that in 1971 the defendant pleaded guilty to robbery in the second degree and was sentenced to an indeterminate term of five years, asked the defendant if he admitted the previous felony conviction, and the defendant’s attorney replied in the affirmative.
It does not appear, however, that the prosecutor gave the defendant a copy of a statement of his prior conviction or that the defendant was informed by the court of his right to controvert specific allegations in the statement and to a hearing, in the event of such controversion, on the issue of the correctness of any allegations thus controverted.
In the second case, the defendant was indicted for burglary in the second degree and grand larceny in the second degree. He entered a plea of guilty to burglary in the third degree, a class D felony, in satisfaction of this indictment and other charges. At the plea hearing he was advised by the court, prior to its acceptance of his plea, that by his plea he was waiving his constitutional rights to a speedy trial, a jury trial, confrontation of the witnesses against him and his privilege against self-incrimination. At the sentencing hearing the defendant admitted that he had been served with a statement from the District Attorney of a prior felony conviction in the State of New York in 1971, did not avail himself of his right to controvert the allegations therein and admitted them. The court sentenced him as a second felony offender to an indeterminate prison term of two to four years.
In the third case, the defendant was indicted for marijuana possession of a controlled substance in the fifth and seventh degrees, criminal possession of a hypodermic and reckless endangerment of property. He pleaded guilty to attempted criminal possession of a controlled substance in the fifth degree, a class D felony, in satisfaction of all the charges against him. At the plea hearing the court informed him that it had in its possession a record which showed that he had a 1970 New York State felony conviction for criminally selling a dangerous drug in the fourth degree and warned him that there were additional mandatory penalties for second felony offenders. The defendant admitted that he was the individual so convicted.
In the fourth case, the defendant was indicted for burglary in the third degree and grand larceny in the third degree. He pleaded guilty to the latter charge, in satisfaction of both charges. At his plea hearing the court informed him that it had ‘a statement of the District Attorney. Defendant took a plea. The record of the sentencing hearing in April, 1974 shows that the clerk of the court informed the defendant that the District Attorney had filed a statement showing that the defendant had been convicted in 1969 of the crime of attempted criminally selling a dangerous drug in the third degree, advised the defendant that he could controvert that allegation as untrue or on the ground that the previous conviction had been obtained in violation of his rights under the Constitution of the United States, and asked him if he wished to controvert any of the allegations in the statement.
In the fifth case, the defendant was indicted for attempted bribery in the second degree. He pleaded guilty to attempted bribery, a class E felony, in satisfaction of this indictment and another one. At the plea hearing the court informed him he would be pleading guilty to a class E felony and inquired if a District Attorney’s statement with respect to prior felony convictions had been served. The defendant’s counsel then acknowledged receipt of the prior felony offender statement. The court noted that the statement showed the criminal defendant had been convicted in 1965 in Queens County of grand larceny in the second degree, a felony.
At the sentencing hearing, the court stated that the defendant had pleaded guilty to a class E felony and that the court, as it had promised, was going to give the ‘least sentence’ it could impose, 1 1/2 to 3. Then the clerk stated that the District Attorney had filed an information accusing the defendant of the above-mentioned prior 1965 conviction, a felony, advised the defendant that he could controvert any of the allegations in the information, and asked him if he wished to do so, to which the defendant replied in negative
In the sixth case, the defendant was indicted for criminal possession of a controlled substance in the fifth and seventh degrees and for resisting arrest. He pleaded guilty to attempted criminal possession of a controlled substance in the sixth degree, in satisfaction of this indictment and several traffic charges.
It appears that the defendant, at least inferentially, admitted to the court that he had a prior conviction of a felony in this State within a period of 10 years and made his plea of guilty with an awareness that his plea would subject him to the mandatory minimum sentence of 1 1/2 to 3 years, which was imposed on him.
These appeals present common constitutional and statutory issues. One or more of the defendants pose the following questions: (1) whether section 70.06 of the Penal Law, which defines, and then prescribes, the sentence that a court must impose when it has found that a defendant is a second felony offender, violates the Federal constitutional ban on ‘cruel and unusual’ punishment; and (2) whether paragraph 3 of section 400.21 of the CPL violates a defendant’s privilege against self-incrimination when it provides that a defendant who stands convicted of a felony, and who might be a second felony offender under section 70.06 of the Penal Law and who has been given a copy of the prosecutor’s statement setting forth the alleged predicate felony wishes to controvert any allegation in the statement,
The defendants contend that CPL 400.21, which governs the procedure for determining whether a defendant is a second felony offender, is constitutionally defective because it Compels a defendant faced with the assertion on sentencing that he is a second offender either to controvert that contention or be deemed to have admitted it.
The relevant portion of the section reads: ‘3. Preliminary examination. The criminal defendant must be given a copy of such statement and the court must ask him whether he wishes to controvert any allegation made therein. If the defendant wishes to controvert any allegation in the statement, he must specify the particular allegation or allegations he wishes to controvert. Uncontroverted allegations in the statement shall be deemed to have been admitted by the defendant.’
The defendants contend that, when they are Compelled to controvert the statement of a prior felony conviction or have it deemed admitted if they remain silent, they are being deprived of their constitutional right to remain silent and their right not to have their silence construed as an admission of the prior conviction. In support of this contention they rely on the provisions of subdivision 2 of CPL 60.15, which are: ‘A defendant may testify in his own behalf, but his failure to do so is not a factor from which any inference unfavorable to him may be drawn’.
However, that sentence clearly applies to a situation in which testimony is to be taken such as at a trial or a pretrial hearing, but not to purely procedural steps taken in connection with an arraignment or plea.
The Criminal Court concluded in a case that the statute there under examination prescribing a mandatory term of from one year to life, which clearly is more severe in possible impact than the mandatory terms in section 70.06 here under consideration, did not violate the Eighth Amendment. We did so on the ground that the Legislature’s exercise of discretion in determining the punishment there prescribed was not unusually severe in the light of the ravages of the narcotics problem, that a legislative enactment carries a strong presumption of constitutionality, that the fact that the sentencing statute was mandatory eliminated the possibility that it is inflicted arbitrarily, that mandatory life imprisonment and mandatory minimum terms of varying kinds have long been upheld and are not considered by contemporary society to be either barbaric or torturous and that the enactment by the Legislature of a mandatory sentence statute presumes a finding that the penalty serves a valid social purpose which cannot be served as effectively by some less severe punishment
The Court affirmed the sentences and concluded by reiterating that the sentences in all these six cases should be affirmed.
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