People v. Festo

— Judgment of the Supreme Court, New York County (Denzer, J.), [766] rendered December 15, 1981, convicting defendant after trial by jury of criminal sale of a controlled substance in the first degree, conspiracy in the second degree and criminal use of drug paraphernalia in the second degree and sentencing defendant to various terms of imprisonment, affirmed. We differ from our dissenting brother on the question of sentence. We hold that the then-mandatory sentence of 15 to life imposed for the conviction of criminal sale of a controlled substance in the first degree was required by law. The proof, although circumstantial, was sufficient to establish defendant’s accessorial liability with respect to the drug-selling operation conducted by defendant’s codefendant Luis Calderon. Like our dissenting brother, we are troubled by the Draconian sentence. Yet, we cannot, in good conscience, say that this is the rare case which on its particular facts may lead to the opinion that the sentencing statute has been unconstitutionally applied (People v Broadie, 37 NY2d 100,119; cf. People v Jones, 39 NY2d 694). While the proof lends itself to the conclusion that defendant, who controlled entrance into the Calderon apartment, was greeter, receptionist, general factotum and bodyguard for Calderon, there is no reasonable doubt that this function was to “protect” the operation by excluding those who might seek to disrupt it. Thus, while he was, in the eyes of the law, an accessory to the crime and is equally guilty, his participation in the criminal activity was markedly less than that of Calderon, the principal actor. In reviewing a sentence “[t]he court thus does not pass on the wisdom of the Legislature’s acts. It holds only that, 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” (People v Broadie, 37 NY2d 100, 118-119, supra). In these circumstances we cannot say that the sentencing statute was unconstitutionally applied {People v Broadie, 37 NY2d 100, 119, supra; see, however, dissenting opn of Breitel, Ch. J., in People v Jones, 39 NY2d 694, 698-702, supra). We are not unaware of the general rule that where a statute reduces the punishment which may be imposed for a crime committed before the statute was enacted but for which sentence is imposed after the statutory amelioration, the ameliorative statute ordinarily vests the court with the discretionary power to impose the lesser punishment provided by the new law. {People v Oliver, 1 NY2d 152.) The reduction of the punishment distinguishes it from an ex post facto law which is constitutionally barred and which either increases the punishment for a crime committed before the statute was enacted or makes criminal an act committed before its enactment {People v Oliver, 1 NY2d 152,158, supra). Were we free to apply that rule in this case we might well be inclined to do so for chapter 410 of the Laws of 1979 reduced the crime committed by defendant to criminal sale of a controlled substance in the second degree. The statute became effective after the defendant had committed the crime and after he had been arrested and indicted, but before he had been tried, convicted and sentenced. However section 29 of chapter 410 provides: “Except as provided in section three of this act, the provisions of this act do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this act, or the construction and application of any defense to a prosecution for such an offense. Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this act had not been enacted." (Emphasis supplied.) Thus, we are specifically enjoined by law from imposing the lesser sentence permitted by the amended statute. Moreover, we take occasion to note that the statute did much more than simply alter the punishment for the crime. It redefined the crime by increasing the weight of the narcotic drug sold necessary to constitute the sale [767] an A-I felony. That Oliver did not intend to cover such a case is evident from the footnote (1 NY2d 152,161, n 3) which mentions the matter. In holding as we do we are moved by no less a sense of compassion than motivates our dissenting brother. We note that defendant’s prior record, although not a perfect one, is not particularly bad. Under the circumstances we deem it appropriate to call the attention of the Governor, with whom lies the power “to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment” (NY Const, art IV, § 4) to the situation with the recommendation that he take such action as may be appropriate. Concur — Sandler, J. P., Sullivan, Silverman and Bloom, Jj.