Opinion
05-01-2012
The PEOPLE of the State of New York, v. Joel GUZMAN, Defendant.
Thomas J. Spota, District Attorney, Suffolk County, by ADA Elizabeth A. Creighton, Riverhead. Christopher J. Cassar, Esq., Huntington, Attorney for Defendant.
Thomas J. Spota, District Attorney, Suffolk County, by ADA Elizabeth A. Creighton, Riverhead.
Christopher J. Cassar, Esq., Huntington, Attorney for Defendant.
MARTIN I. EFMAN, J.
Defendant stands accused under Indictment No. 03152C–2010 of the following:
Count 1 Conspiracy in the Second Degree, PL § 105.15
2 Operating as a Major Drug Trafficker, PL § 220.77(1)
5 Criminal Sale of a Controlled Substance in the Second Degree, PL § 220.40(1)
6 Criminal Possession of a Controlled Substance in the First Degree, PL § 220.21(1)
7 Criminal Sale of a Controlled Substance in the Second Degree, PL § 220.40(1)
8 Criminal Possession of a Controlled Substance in the Third Degree, PL § 220.16(1)
9 Criminal Possession of a Controlled Substance in the Third Degree, PL § 220.16(12)
10 Criminal Possession of a Controlled Substance in the Third Degree, PL § 220.16(1)
11 Criminal Possession of a Controlled Substance in the Fourth Degree, PL § 220.09(1)
Defendant is one of twenty-seven co-defendants charged in this indictment. The defendants are charged, in various capacities, with operating an organization for the acquisition, sale and distribution of heroin in Suffolk County. A significant portion of the evidence against this defendant was obtained as the result of the issuance of a series of eavesdropping warrants by the Court. During the period of time between December 9, 2009 and December 9, 2010, evidence of recorded calls between defendant and others established before the Grand Jury that defendant personally engaged in negotiations relating to availability, quantity, packaging and delivery of heroin, provided a supply of heroin to subordinates, oversaw cash and financial transactions, engaged in negotiations to set up multiple narcotics transactions, shared information about known police activity and discussed an offer of sale for a separate heroin business in Suffolk County. The aggregate monetary value of defendant's business operation was established by evidence of specific drug transactions, including drug quantities and monetary amounts, occurring on specified dates with identified buyers.
Pursuant to Penal Law § 220.77(1), Count Two alleges that defendant, acting in concert between December 9, 2009 and December 9, 2010, was a director of this heroin operation and that the proceeds collected or due from sales had an aggregate value of seventy-five thousand dollars or more. Defendant now moves to dismiss Count Two on the basis that the language of Penal Law § 220.77(1) violates the due process provisions of the United States Constitution and the New York State Constitution. The People are opposed. For the reasons stated below, defendant's motion on this basis is denied.
Penal Law § 220.77 was enacted as part of the Drug Law Reform Act of 2009. Alternately known as a "king pin" statute, it created a new offense of operating as a major trafficker, a class A–I felony. Penal Law § 220.77(1) states as follows:
A person is guilty of operating as a major trafficker when:
1. Such person acts as a director of a controlled substance organization during any period of twelve months or less, during which period such controlled substance organization sells one or more controlled substances, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more
Defendant argues that the terms "director", "controlled substance organization", "twelve months or less" and "proceeds collected or due from such sale or sales" are impermissibly vague.
A vagueness challenge involves a two-part analysis. First, a statute is unconstitutionally vague if it fails to clearly define the conduct it proscribes, Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). A penal law statute must provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited. Secondly, it must be written in a manner which precludes arbitrary and discriminatory enforcement by police, Grayned, Id.; People v. Bright, 71 N.Y.2d 376, 526 N.Y.S.2d 66, 520 N.E.2d 1355 (1988). The statute "must provide explicit standards for those who apply them' so as to avoid resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application' ", People v. Smith, 44 N.Y.2d 613, 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032 (1978) quoting Grayned, supra.
To prevail on a void-for-vagueness claim, the party raising the challenge bears the burden of establishing that the provision is unconstitutional beyond a reasonable doubt, People v. Scalza, 76 N.Y.2d 604, 562 N.Y.S.2d 14, 563 N.E.2d 705 (1990). This is a heavy burden. The Court has recognized "the firmly established principle that legislative enactments are cloaked with a strong presumption of constitutionality", NYS Society of Enrolled Agents, et. al., v. NYS Division of Tax Appeals, 161 A.D.2d 1, 559 N.Y.S.2d 906 (2nd Dept.1990). Although that presumption is rebuttable, the Court will strike a statute as unconstitutional "[o]nly as a last resort", Id. at 6, 559 N.Y.S.2d 906. "The courts have also recognized a further presumption that the Legislature has investigated and found the existence of a situation indicating the need for and the desirability of the statute (citations omitted)", Id. at 6, 559 N.Y.S.2d 906.
PL § 220.77 addresses compelling and legitimate legislative goals, of which "to be sure, one of those is public safety", People v. Sosa, 18 N.Y.3d 436, 442, 940 N.Y.S.2d 534, 963 N.E.2d 1235 (2012). Although the New York State Drug Law Reform Act of 2009 (L. 2009, CH. 56, part AAA § 29 eff. Nov. 1, 2009) is, in large part, remedial in nature, the Legislature specifically established three classes of serious drug offenses under PL §§ 220.77(1), (2) and (3). The designation of these crimes in clear and unambiguous language reflects a legislative intent "[t]o create new offenses or elevated punishment levels for those who operate as a major drug trafficker ...", Memo to NYS Senate Bill S1576–2009. The justification for these provisions was to address a perceived shortcoming in existing law, i.e. the inability of prosecutors to charge "drug kingpins", who do not expose themselves to felony sale or possession charges, with anything more serious than the Class B felony of Conspiracy in the Second Degree. The declared policy of the Legislature in enacting these provisions was "to provide significant sanctions for those who cannot be said to be included in the group of low level addicted offenders intended to benefit from the sentence reductions" and to "provide appropriate sentences for those who seek to profit from the sale of drugs and those whose drug crimes endanger our children and communities", Id.
In enacting this statute, the Legislature defined the terms "director" and "controlled substance organization".
Penal Law § 220.00(19) states:
"Director" means a person who is the principal administrator, organizer, or leader of a controlled substance organization or one of several principal administrators, organizers, or leaders of a controlled substance organization.
Penal Law § 220.00(18) defines "controlled substance organization" as follows:
"Controlled substance organization" means four or more persons sharing a common purpose to engage in conduct that constitutes or advances the commission of a felony under this article.
The Court finds that the terms "director" and "controlled substance organization" are not unconstitutionally vague. The purpose of the statute is to provide enhanced penalties for those in leadership positions of large-scale drug enterprises. Through inclusion and specific definitions of the words "director" and "organization", the proscribed conduct is sufficiently identified. A person of ordinary intelligence has "fair notice that his contemplated conduct is forbidden by the statute", People v. Smith, 44 N.Y.2d 613, 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032 (1978) quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). A citizen of ordinary intelligence can certainly comprehend that acting as a principal administrator, organizer or leader, on more than one occasion, of a controlled substance organization of defined monetary scope is proscribed behavior that would subject one to punishment.
Although the phrases "twelve months or less" and "proceeds collected or due from such sale or sales" are not specifically defined, their meanings are easily understood by ordinary individuals. Failure to define all material terms in a criminal statute does not render it unconstitutionally vague, People v. Nelson, 69 N.Y.2d 302, 514 N.Y.S.2d 197, 506 N.E.2d 907 (1987) ; People v. Bergerson, 17 N.Y.2d 398, 271 N.Y.S.2d 236, 218 N.E.2d 288 (1966). A penal law will be upheld provided that it "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement", Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The indictment herein defines a twelve month period of time between December 9, 2009 and December 9, 2010. The "proceeds" in this case are cash, evidence of which is linked to specified transactions, payment amounts and dates. These elements of Penal Law § 220.77(1) are calculable measures that a person of ordinary intelligence can understand.
With respect to all four of the phrases attacked by defendant, the Court determines that the statute provides sufficient guidance to law enforcement officials to preclude arbitrary and discriminatory enforcement, Grayned, supra. The statute limits prosecution to the director of a controlled substance organization during a defined time period with a specified valuation of proceeds. These are objective criteria that are not dependent upon the subjective conclusions of law enforcement. Defendant's argument of vagueness in this regard is diminished by the fact that the prosecution is based, in large part, not upon "a whim" or "unfettered discretion" but, rather, upon a series of wiretaps which recorded defendant's conversations and which the People rely upon to establish key elements of this offense, Kolender, supra at 357–358, 103 S.Ct. 1855.
For these reasons, the Court finds that defendant has failed to meet his burden and defendant's motion to dismiss on the basis that Penal Law § 220.77(1) is unconstitutionally vague is denied.
This foregoing shall constitute the Decision and Order of the Court.