Opposition Brief — Davis v. New York

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IN THE 1

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-6382

WILBERT DAVIS,

Petitioner,

—against—

THE STATE OF NEW YORK,

Respondent.

A ES

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

EUGENE GOLD

District Attorney

Kings County

Attorney for Respondent

400 Municipal Building

Brooklyn, New York 11201

Tel: (212) 643-5100

HARRY BRODBAR

Assistant District Attorney

of Counsel

TABLE OF CONTENTS

PAGE

en | er ee eee 1

Opinions Below .............----seeseeeeeeeee 2

CR ee ks ee eah aah ae yen aa 6 2

Constitutional Provisions Involved ........ ora tars 3

New York Statutory Provisions Involved ........ 3

YS ee eee ee Peer eee ee 4

I ec aes owns amare wee a 5

re any ea mha ek Ree ESS 5

See nn NS 5 pe cnemacn cece ves 5

i, I nn rac weg wd wn ecw a 8

ee A, PEPE PEEP EET oe eee 13

ARGUMENT:

A. The petition for the writ of certiorari should

be dismissed since the case is moot ......... 14

B. The arrest and conviction of the petitioner,:a

narcotic addict, for possession of heroin and

the implements required to maintain his habit,

did not violate the constitutional mandate

against “cruel and unusual punishment,” in

the absence of proof that his addiction brought

on such a deterioration of the mind so as to

fall within the ambit of New York’s test for

criminal responsibility as found in Section

30.05 of the Penal Law, and where there is a

concession that there is no mental illness or

incapacity within the intendment of that

statute. Any further inroad into that statute

so as to immunize mere addiction from crimi-

nal sanctions would not be legally feasible and

would tend to be violative of this State’s public

policy regarding the safeguarding of the

health, safety and morals of its citizens ......

oy UN Te a ap i Neany 5 (ae een Pea Mine At RSE Mire

APPENDIX A—Excerpts from Rosenblatt, New

York’s New Drug Laws and Sentencing Statutes,

Law Journal Press, N. Y., pp. 104-07, with com-

ments by the author of this brief .............

AUTHORITIES CITED

Cases

Bailey v. United States, 386 F. 2d 1 (5th Cir. 1967)

Castle v. United States, 347 F. 2d 492 (D.C. Cir.

PAGE

1964, cert. denied, 381 U.S. 929 (1965) .. .24, 26, 33, 36

Fiswick v. United States, 329 U.S. 211, 67S. Ct. 224

NG oh coe ee yeas wawed wee wAN eee

Gaskins v. United States, 410 F. 2d 987 (D.C. Cir.

| Naa ARPT NGbe tit ce ry ge FE peep ea ee

Gleason v. Gleason, 26 N Y 2d 28, 256 N.E. 2d 513

CE ea cake weeuvauaesen Goan vasenn's

Heard v. United States, 348 F. 2d 43 (D.C. Cir.

a Ce can ea akennkenebaaenes

Jacobs v. New York, 388 U.S. 431, 87 S. Ct. 2098

CE CO ce case nane een anu en 13,

Lloyd v. United States, 343 F. 2d 242 (D.C. Cir.

1964), cert. denied, 381 U.S. 952 (1965) ......

15, 20

iil

PAGE

Matter v. James, 22 N Y 2d 545, 240 N.E. 2d 29

Ce acancacustscssse0=banewee sees 37

M'Naghten Case, 10 Clark and Fin. 200 (1848) ... 27

Nutter v. States, 8 Md. App. 635, 262 A. 2d 80

(Ma cc aac an san ee eRe Apes eee ene’ 27

Parker v. Ellis, 362 U.S. 574, 80 S. Ct. 909 (1960) 16

People v. Borrero, 19 N Y 2d 332, 227 N.E. 2d 18

ace ied eer Rare cn as Tk ke 35, 46

People v. Fuller, 24 N Y 2d 292, 248 N.E. 2d 17

Pe or ha es whe eee nee ee a eee ens 28

People v. Jackson (Henry, Jr.), 40 Ill. 2d 143, 238

WE. 2 S88 (1968) ..... 22 cc cece es se seeess 27

People v. Jackson (Samuel Lee), 253 N.E. 2d 527

SN a. eae ee xe de Mane eee Saat ee es 27

People v. Luckey, 90 Ill. App. 2d 329, 234 N ‘.E. 2d

Se): | he nae irr: fmm ta ey 27

People v. Myers, 89 A D 2d 122 (2d Dept., N. Y.

NN i oe EA Ae vemip heme eee aie « 27

People v. Nettles, 34 Ill. 2d 52 213 N.E. 2d 536

(1966), cert. denied, 386 U.S. 1008 fy eee 27

People v. Perez, 41 A D 2d 903 (2d Dept., N.Y.

SERS gasinee Remon mere er re eat f 27

People v. Trapp, 20 N Y 2d 613, 233 N.E. 2d 110

See veer e rr er Te eR Loe 46

Powell v. Texas, 392 U.S. 514, 88 S. Ct. 2145

| eer 31, 32, 33, 36, 38, 39, 41, 42, 43, 44

Queen Vv. Dudley & Stevens, 14 2 fs: Se 25

Robinson V. California, 370 U.S. 660, 82 S. Ct. 1417

GOOD. | duaccusievs Kecnecteduece ventas 38, 39, 41

St. Pierre v. United States, 319 U.S. 41, 63 S. Ct.

| re Teer ey rere ree ee 15, 16

Salzman V. United States, 405 F. 2d 358 (D.C. Cir.

Oey err ker ee Te Lee 27

Sexauer & Lemke v. Luke A. Burke & Sons Co., 228

N.Y. 345, 127 N.E. 329 (1920) .........----- 29

a at eae Lae ta ia,

VORTMAN

PPLE PIA PLL IP OL HY IA OG ACRE LSI IME IPSILON IA

PAGE

Smith v. Follette, 445 F. 2d 955 (2d Cir. 1971) ... 26

Spencer v. Texas, 385 U.S. 554, 87S. Ct. 648 (1967) 16

Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243

LO Pe errr rrr rere Tr yrerrrrry TT rire. 40

Tannenbaum v. New York, 388 U.S. 489, 87 S. Ct.

2107 (1967), rehearing denied, 389 U.S. 892

|. : i erery: Sere eur ery ewe res 13, 15

The New York and Oswego Midland Railroad Com-

pany Vv. Van Horn, 57 N.Y. 478 (1874) ....... 18

Twin City Co. v. Harding Glass Co., 283 U.S. 353,

Si B. Ce. 476 (1GBO) 2... ccscccccsncccvscveses 21

United States v. Ashton, 317 F. Supp. 860 (U.S.D.C.

I kc cb dR d rc aaee bias tere deci seeees 22

United States v. Freeman, 357 F. 2d 606 (2d Cir.

BOD: ivebéd cascesacanesseetcrses oeewes 26, 27, 33

United States v. Moore, 486 F. 2d 1139 (D.C. Cir.

1973), cert. denied, US. , 94 S. Ct. 298

CEE. ccidccuawanse senda ceeesseusta 22, 29, 37, 38

United States v. Morgan, 346 U.S. 502, 74 S. Ct.

OE CUD isch 480 6500 en eee erneeneneees 15

United States v. Romano, 482 F. 2d 1183 (5th Cir.

Ng ccanede Nar taness tee een eens teenies 12

United States v. Thirty Seven (37) Photographs,

402 U.S. 363, 91 S. Ct. 1400 (1971), rehearing

denied, 408 U.S. 924 (1971) .......cecceeces 40

United States v. Williams, 8 CrL 2460 (March 4,

1971) (D.C. Super Ct.) ......cccccceccscecs 27

United States ex rel. Kyle v. Mancusi, 445 F. 2d 955

PR Ee, BITES i cence vctqusreawictvenseceneus 26

U.S. Fidelity Co. v. Struthers Wells Co., 209 U.S.

306, 28 S. Ct. 587 (1908) .......... eee eeee 18

Wheeler v. United States, 276 A. 2d 722 (D.C. Ct.

pg PORE 27

"ANT OL eee A Ree LCS TE

Statutes

PAGE

21 U.S.C., Section 802(1) (ON: 5 okesee eres 37

298 U.S.C., Section 1257(3) «6. eee r errr 2

28 U.S.C.A., Section 1257 (nn. 63, 64, 70, 71, 73, .

BN ig occupa ROG EE RES ERTS ee RURAAIREEND 35 E

42 U.S.C. Section 201(g) (1970) .......++-: 37

Article 81, Revised New York Mental Hygiene Law 46 1

Article 220, New York Penal a reer er 17, 18, 19, ;

A5, A6, A7, A8 .

Chapter 276, Sections 18, 19, New York Session }

Rae TUTE on ccs c ceca reracnentsereerree 16, 17, A2 ;

Former Section 220.05, New York Penal Law ... .2, 3, 16,

A2, Ad

McKinney’s Consolidated Laws of New York An-

notated, Book 1, Statutes, Section 51(b) ......- 19

Section 200, former New York Mental Hygiene .

MO oy bd AED SHES TEE ELORAERD AUEEERIEESES 24, 28

Section 208, former New York Mental Hygiene ij

Sele cing ad Voudun KOek be Aeae 8t ME REFS USERS 15

Section 200(1) (2), former New York Mental Hy- :

hens LAM nis cacev ed newens snes tear enenes 24, 28 :

Section 81.01, Revised New York Mental Hygiene

De ic ane t he en de eM RASH OES AETHER DEES 24

Section 81.01(a), Revised New York Mental Hy- A

giene Law .....-----ecceecereecert ee tee 28 é

Section 81.01(b), Revised New York Mental Hy- :

giene LAW .......00ecceeeeeeeceeneeee seen 28 ¢

Section 81.07, Revised New York Mental Hygiene

ee udu nded nbeeeetarastes re etanaesaeenes 37

PAGE

Section 30.05, New York Penal Law ..... 4, 18, 14, 20, 21,

24, 27, 28, 47

Section 65.05(3) (b), New York Penal Law ...... 4,15

Section 70.06 (ii) (iv) (v), New York Penal Law .. 16, 17,

19, A7

Section 70.10, New York Penal Law .......... 16, 19, A7

Section 70.15, New York Penal Law ........... 15

Section 220.12, New York Penal Law .......... 17

Section 220.16(2), New York Penal Law ........ 17, A5

Section 220.34(2), New York Penal Law ........ 17

Section 220.37(2), New York Penal Law ........ 17

Section 220.39(2), New York Penal Law ........ 17, Ad

Section 220.45, New York Penal Law ....2, 3, 16, A5, A7

Section 220.50, New York Penal Law ........... A5, A8&

Section 220.55, New York Penal Law ..... 17, A5, A7, A8

United States Constitution

SE EE o'd.n ok e0 0) be acecencauees 3, 5, 14, 16

Fourteenth Amendment ...............06.: 3, 14, 16, 40

Supreme Court Rules

OE ccc adb dv daos hens ieee bbcebunee sas 2

Miscellaneous

Conrad, Mr. Seward for the Defense ............ 25

Ie SO 6 e565 54 00 5404-58 Oa bes dcs ews 25

Rosenblatt, New York’s New Drug and Sentencing

Statutes, 1973, Law Journal Press, N.Y. ....... 18, Al

World Health Organization definition of heroin

NEE Gc kc ac caked on een een tee ree 21, 23, 24, 37

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-6382

’™

WILBERT DAVIS,

Petitioner,

—against—

THE STATE OF NEW YORK,

Respondent.

—

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Preliminary Statement

Petitioner seeks a writ of certiorari to review an order

of the Court of Appeals of the State of New York, entered

on December 28, 1973, affirming, without dissent,* an order

of the Appellate Term of the Supreme Court of the State of

New York for the Second and Eleventh Judicial Districts of

the Second Judicial Department, entered on April 26, 1972,

which unanimously affirmed judgments of the Criminal

* Chief Judge Fuld did not participate.

PIT

ERMAN RAE NOE MET G I APE

1O8SE DARIN ay

OME PRR TT

PRS oe

Pree ereceesenace ns

Court of the City of New York, County of Kings. rendered

on June 8, 1971, following a nonjury trial convicting peti-

tioner of possession of a dangerous drug in the sixth

degree* and criminal possession of a hypodermic instru-

ment,** both misdemeanors, and sentencing him on each

charge to a conditional discharge.

Opinions Below

The opinion of the New York Court of Appeals is re-

ported in 33 N Y 2d 221, 306 N.E. 2d 787 (1973), and is

set forth in Appendix A of the petition for the writ of

certiorari. No written opinion or memorandum was handed

down by the Appellate Term of the Supreme Court of the

State of New York for the Second and Eleventh Districts

of the Second Judicial Department. A copy of the order of

affirmance by that court made and entered on April 26,

1972, is part of the petition at Appendix B thereof. The peti-

tioner has also set forth the opinion of Hon. Bruce McM.

Wright, a Judge of the Criminal Court of the City of New

York, County of Kings, who presided at the trial, at Ap-

pendix C.

Jurisdiction

Jurisdiction for the present petition is sought to be in-

voked under 28 U.S.C., Section 1257(3) and Rule 19(1) of

the Rules of this Court. The petitioner contends that the

application of criminal sanctions on him, a drug addict, for

possession of heroin and the hypodermic instrument used

* Former Section 220.05 of the New York Penal Law.

** Section 220.45, New York Penal Law.

> era Tet eee.

to administer it, is impermissible cruel and unusual punish-

ment in a constitutional sense (Eighth and Fourteenth

Amendments to the Federal Constitution).

Constitutional Provisions Involved

UNITED STATES CONSTITUTION, AMENDMENTS VIII and

XIV.

New York Statutory Provisions Involved

Former Section 220.05 of the Penal Law (Criminal pos-

session of a dangerous drug in the sixth degree) read as

follows at the time of the petitioner’s arrest:

“A person is guilty of criminal possession of a

dangerous drug in the sixth degree when he know-

ingly and unlawfully possesses a dangerous drug.

Criminal possession of a dangerous drug in the

sixth degree is a class A misdemeanor. As amended

L. 1969, c. 788, sec. 1, eff. Sept. 1, 1969.” Repealed.

L. 1973, ¢. 276, sec. 18, eff. Sept. 1, 1973.

Section 220.45 (Criminally possessing a hypodermic in-

strument), is set forth as follows:

“A person is guilty of criminally possessing a

hypodermic instrument when he knowingly and un-

lawfully possesses or sells a hypodermic syringe or

hypodermic needle.

Criminally possessing a hypodermic instrument is

a class A misdemeanor. L. 1965, c. 1030, eff. Sept.

1, 1967.”

Section 65.05 of New York’s Penal Law, reads in its

pertinent parts as follows:

“65.05 Sentence of conditional discharge

) Ti aad

a ills

3. Periods of conditional discharge. Unless ter-

minated sooner in accordance with the code of

criminal procedure [amended to criminal procedure

law by L. of N. Y., 1971, ¢. 1097, sec. 74, eff. Sept.

1, 1971], the period of conditional discharge shall

be as follows:

(a) #22

(b) One year in the case of a misdemeanor or a

violation * * *”

Section 30.05 of the Penal Law of the State of New York

governing criminal responsibility by reason of mental

disease or defect, reads as follows:

“30.05 Mental disease or defect

1. A person is not criminally responsible for con-

duct if at the time of such conduct, as a result of

mental disease or defect, he lacks substantial capa-

city to know or appreciate either:

(a) the nature and consequence of such con-

duct; or

(b) that such conduct was wrong.

2. In any prosecution for an offense, lack of crim-

inal responsibility by reason of mental disease or

defect, as defined in subdivision one of this section,

is a defense. L. 1965, c. 1030, eff. Sept. 1, 1967.”

Questions Presented

1. Should this Court depart from the well-recognized doc-

trine of mootness since petitioner’s convictions carry with

them no disabilities, and the period during which the sen-

tences of conditional discharge imposed can be revoked

under the law of the State of New York (Section 65.05 [3]

{[b], Penal Law of the State of New York) has now been

concluded?

= eae eer ee

2. Does the imposition of criminal sanctions for the pos-

session of heroin and the instruments by which the drug is

administered on a defendant in a case where it is shown

that there is narcotic addiction without more, and where

there is no claim of mental illness or mental incapacity with-

in the intendment of New York’s statute regarding criminal

responsibility by reason of mental disease or defect, vio-

lative of the prohibition against cruel and unusual punish-

ment enunciated by the Eighth Amendment to the Federal

Constitution? In short, is the State of New York constitu-

tionally required to formulate a more liberal test of criminal

responsibility than is presently extant so that such new test

may redound to the benefit of a mere addict?

Statement of the Case

The Trial

A. The State’s Case

PATROLMAN ANTHONY J. VoGLIO, a New York City

Police Officer, testified substantially as follows:

He has been a police officer for two and one-half years,

and was at the time of the crimes assigned to the 88th

Precinct Tactical Patrol Force (43).* On February 4, 1971,

he had been on duty from 6 P.M. until 2 A.M. (43-44).

While standing with a brother officer at the corner of Ful-

ton Street and Lafayette Avenue, in the County of Kings,

City of New York, he received information that day from

* Numbers in parentheses refer to the pages of the original type-

written minutes of the trial. The trial took place on February 24,

March 4 and 10, 1971, and the pages of the transcripts are consecu-

tively numbered. On September 28, 1972, the New York Court of

Appeals granted leave to the petitioner to appeal to that court as a

poor person on the original record.

fo?)

a person whom he escorted to 34 Fort Greene Place, in said

County, a three-story walkup. The informant, who lived

at that address, opened the door of the building for the

witness and his brother officer (44-45). The door referred

to was the one leading into the building (46). The witness

ascended one flight, and as he “turned off the stairway” a

bathroom door was ajar about three to four inches. The

witness then “turned to... [his] right” and saw the peti-

tioner facing a wall, “which would be his left, profile

facing me,” with a hypodermic needle in his left hand and

which needle was against his right forearm (47). The

- witness then walked into the bathroom, took the hypodermic

needle from the petitioner and placed it on the window sill

preparatory to searching the petitioner (47-48). The peti-

tioner was arrested and, according to the witness, every-

thing which had been confiscated from the petitioner “was

either in his hands at the time or on the window sill; like the

bottle cap and the cotton. The stuff was on the window

sill” (48). The officer did not then know what was in the

hypodermic needle (49).*

On continued direct examination, the witness stated

that the petitioner was thereafter taken to the precinct

(50), following which time the confiscated items were

brought to the laboratory for analysis (51). At this pos-

ture, it was stipulated that if Patrolman Yonada Lee, the

police chemist, were then present in court, he would

testify that the hypodermic needle was functional, that the

eyedropper, which was also one of the items seized, con-

* The validity of the seizure was never placed in issue by the peti-

tioner.

ee eee ee ee

tained one milligram of liquid heroin, while the cotton

contained no dangerous drug. Defense counsel then offered

the laboratory report as petitioner’s Exhibit A (54), at

which time the State requested that the contraband also

be received in evidence (54-55), which was done, the items

being referred to as petitioner’s Exhibit B (55). The wit-

ness then informed the court that a CR-1 form was filled

out following the arrest, and that as a result of his own

examination of the petitioner's “physical features,” there

were fresh needle marks on the right arm (56). According

to the arresting officer, the petitioner “pleaded with us that

we let him finish taking the shot” (57).

On cross-examination, the witness offered his opinion

that the petitioner was an addict (57). The petitioner had

admitted to him that he used heroin (58), and that he had

been doing so for a period of eighteen months on a daily

basis at a cost of $10 a day (59). The witness reiterated

that the petitioner pleaded with him for a chance to com-

plete taking his shot since he was going to be in jail for

the night. The request was refused (59-60). The police

officer had made from ten to fifteen arrests for possession

of narcotics and narcotic paraphernalia, and during his

studies in the Police Academy he had received training in

that subject matter (60). As-a police officer, he had seen

hundreds of addicts, and could recognize addiction from

physical appearances and symptoms (61). As for the peti-

tioner, in addition to the witness noting his appearance, and

observing some symptoms, there was the added fact that he

was about to inject himself (61-62). The witness concluded

his testimony by reiterating that based upon his experience

the petitioner was a drug addict (62).

B. The Defense

The State shall adopt the summary of the salient testi-

mony of the various professional witnesses as found in the

opinion of the trial judge (Petitioner’s Appendix C, pp.

C-3 to C-6), as follows:

“It will be helpful, in considering the defendant’s

thesis, to summarize the testimony of each witness,

insofar as the professional views of each bear upon

the issues raised during the trial.

(a) EARLAND Cyrus, M.D.: Dr. Cyrus examined

defendant shortly after his arrest and found him,

within ‘the meaning and purview of § 201 of the

Mental Hygiene Law?’ to be an addict (68).

(b) BeNy JENE Primm, M.D.: Dr. Primm, the

Program Director of Addiction Research and Treat-

ment Corporation (ARTC), examined defendant

following the latter’s parole into ARTC’s custody

(170). The court was deeply impressed with the

doctor’s wide-ranging knowledge of one of our most

vexatious dilemmas. His credentials reflected a

pioneering engagement of addiction as a persistent

bane of our society (163-170.) He stated ‘With

certitude and unequivocally’ that defendant was a

narcotic addict (175-176.)

He agreed with a World Health Organization

definition of heroin addiction and dependence as ‘An

overpowering desire or need to continue taking the

drug and to obtain it by any means,’ because of

‘Such overwhelming involvement . . . that the use

[of] narcotics is the central feature’ of the addict’s

life, creating both a psychic and physical dependence

upon the drug (178). In his own incisive words,

Dr. Primm described defendant’s craving for heroin

as a ‘compulsive psychological’ drive, and one which

BOTT BS OT ES OO ETT Bde

is ‘patho-psychological’ (180), undeterred by the

dread possibilities or the chance for fatal conse-

quences (181-182. )

After saying that the prison process has no heal-

ing effect whatsoever in abating addiction, Dr.

Primm added that an addict ‘is indeed not a crimi-

nal, but a very sick person’ (187), whose insatiable

hunger for his opiate thrives upon the myth of

‘addict culturedom’ that the worst tragedy in life

is an abrupt deprivation of drugs. ‘Therefore, the

degree of compulsion is further increased from the

fear of this myth’ (189.)

There can be little doubt that addiction is a dis-

ease, or that the malady has grown to epidemic

proportions in recent years. Neither can it be

doubted that jails provide neither the medicine nor

the long-term chemo-therapy necessary to retard

the avid hunger of an addict for his anesthatized

[sic] reality.

ordinary example of a former addict, self-shorn of

his narcotic burden, testified in a most moving and

poignant way to his life along our mean streets, his

wasted youth as a sometime tenant of various

prisons and the fierce and rampant drive of his

early and persistent addiction. During the twenty

years he was an addict, he was arrested sc many

times that he ‘lost track.’ His convictions numbered

three for felonies and six or seven for misdemeanors

(143.)

His habit required twenty bags of heroin a dayt?

(144), he said, as he offered testimony to buttress

the defendant’s argument that addiction is a sick-

ness depriving its victims of all power to reason

between right and wrong, leaving them to be help-

lessly compelled and driven solely for the appease-

ment of their addictive lust.

Addiction, he said, ‘is the totality; that’s the

whole thing. Everything else revolves around the

addiction; life and death’ (160), and the addict is an

‘Emotionally immature’ waif at the perilous whim

of a ‘type of lunacy’ (160). Mr. Avaleres noted that

his brother had been an addict. When the brother

was arrested, leaving a wife behind, Mr. Avaleres

prostituted the wife to raise money for drugs (260. )

He did not accept the premise that addicts really

‘know what they are doing or feeling or anything

like that’ (263.)

Prisons, he said, were of no avail to an addict and

acted only as a seed-bed for future crimes. During

a two and one-half year period at Rikers Island,

he learned from other prisoners ‘pushing and using

more drugs, on the heavier basis’ (251). Imprison-

ment was an opportunity to ‘tighten up’ one’s con-

nections and lay the basis for future purchases of

contraband (252.) Acting as preceptors for artful

dodging, imprisoned addicts schemed to refine such

underworld wisdoms as ‘how to commit burglaries;’

where to dispose of stolen property; the kinds of

lawyers to retain and precisely what and how much

to tell them and what not to say; what to steal and

what neighborhoods to steal it from and the strategy

for breaking and entering a home and how to pur-

chase drugs at the best price (267-269. )

This melancholy narrative revealed that our

prisons are virtual learning academies for the

underworld, where close attendance is compulsory.

It speaks eloquently to the point of bare imprison-

ment, also, as opposed to any effort at rehabilita-

tion or, in the case of an addict, a cure for his afflic-

tion.

(d) WituiamM J. VANDEN HEUVEL: Mr. Vanden

Heuvel, Chairman of the Board of Correction of

the City of New York, uttered many hard sayings

which may be summarized as an assertion that the

City’s jails are not the place for narcotic addicts.

Nevertheless, between 50° and 70% of the prison

population have had some narcotic involvement

(277-278.) Between October, 1970 and March, 1971,

there were nine deaths in City detention centers,

seven of which were suicides. All had ‘a common

denominator of narcotics’ leading to their detainer.

No prison facility was adequate to treat the ar-

rested addict (279, 281-282, 296.)

Addicts, it was stated, aré not competert to under-

stand or dea! with their confrontation with criminal

justice (285-286). Apparently produced in support

of the defendant's thesis that, as an addict, charged

with possessing narcotics for his own use, his Con-

stitutional rights are violated by the charges them-

selves, accompanied by their burden of the criminal

process. He quoted Dr. Vincent Dole as saying that

addicts, deprived of drugs and in a state of with-

drawal from their influence, are not competent to

participate in the complex steps of criminal arrest,

arraignment, hearing and trial and certainly not

imprisonment (285.)*

+ Article 9, Menta! Hygiene Law deals with drug

addiction in New York. Perhaps its boldest and

only genuine success has been to reorganize in its

text that narcotic addiction is a ‘disease’ ' $ 200). It

creates a Commission for the compulsory treatment

of the malady and for the rehabilitation of addicts.

Either from lack of money and space or a simple

* (Footnote not in original.) Dr. Vincent P. Dole was conceded to

be an expert in addiction and has been 2 leader in the formulation of

the Methadone Program (385).

inability to recognize the epidemic proportions of

drug addiction, the Narcotic Addiction Control Com-

mission has been a failure in meeting the noble ends

it was enacted to achieve.

++ Compare this with defendants’ maximum use

of four bags each day, although defendant’s use was

for a period of only two and one-half years (96,

98.)”

The State will accept the petitioner’s additional state-

ment of facts, which also includes his testimony as a witness

in his own behalf (Petition, pp. 3-8).

The gist of the testimony of all of the defense witnesses

does not affect the gravamen of the charges lodged against

the petitioner, and is concerned solely with the nature of

narcotic addiction, the plight of the addict, and the fact

that the petitioner was a narcotic addict who underwent

peculiar problems and experiences, social and medical,

because of his condition. Some testimony was also gener-

ally adduced to the effect that a person in the process of

withdrawal from heroin, or other heavy drug use, is not

competent to cope with the problems of confrontation with

the processes of criminal justice. The aim of defense coun-

sel in presenting his witnesses was to fortify the position

that the initiation of criminal charges against the petitioner

for possesson of heroin and a hypodermic instrument, for

his own use, violated his constitutional rights.*

* There is no claim that the petitioner was charged with the com-

mission of a crime while under the influence of drugs so as to affect

his intention in the commission of such crime. Compare United States

v. Romano, 482 F.2d 1183, 1196 (Sth Cir. 1973).

DME aR, Dy UNE ETT

References shall be made to the particular testimony of

some of the witnesses for the defense, as well as to the peti-

tioner himself, as the State may deem appropriate in seek-

ing the denial of the writ of certiorari sought herein.

Summary of Argument

Firstly, it is the respectful submission of the State of

New York that the doctrine of mootness is still of sufficient

legal vitality to warrant its application herein. This Court

has long enunciated this doctrine wherein no attempt will

be made to review an appeal on the merits without a show-

ing of factors which are of sufficient vigor to move the

Court from this traditional rule. Thus, it is contended by

the State of New York that there do not exist any con-

siderations to veer this Court from applying the doctrine

of mootness. See Jacobs v. New York, 388 U.S. 431, 87 S.

Ct. 2098 (1967), and Tunnenbaum Vv. New York, 388 U.S.

439, 87 S. Ct. 2107 (1967), rehearing denied, 389 U.S. 892

(1967), wherein the doctrine was applied by the majority

of this Court.

Secondly, no Federal question, constitutional or other-

wise, exists. New York as a sovereign State is constitu-

tionally empowered to enact a reasonable statute such as

Section 30.05 of the Penal Law (Mental disease or defect),

supra, which presently serves as the sole and legally sound

criterion for determining criminal responsibility. Criminal

sanctions thereby imposed upon a mere addict for the

possession of illicit heroin to feed his habit, and the instru-

ments by which the drug is administered, cannot logically

and rightfully bring into play any contention that such

person has been subjected to cruel and unusual punishment.

Without any showing that the petitioner’s addiction has

brought on an impairment of the mind so severe as to be

equivalent to insanity and thus within the ambit of Section

30.05 of New York’s Penal Law, as the petitioner concedes

in his petition (Petition, p. 12), and as he has done in the

court below, it cannot be justifiably urged that the State

of New York is constitutionally impeded from applying the

criminal law to the conduct for which he was arrested and

convicted. Any other conclusion would act to the detriment

of this State’s legitimate public policy interest of preserving

the health, safety and morals of its citizens within its

borders. It is respectfully contended that it is this public

policy which mandates the determination that no rights and

privileges of the petitioner under the Eighth and Four-

teenth Amendments to the United States Constitution have

been violated by the imposition of criminal sanctions upon

him, a mere addict, for what he terms an “uncontrollable”

compulsion—which the facts of the case actually belie—to

possess heroin and the implements by which the drug is

administered.

ARGUMENT

The petition for the writ of certiorari should be dis-

missed since the case is moot.

It is the respectful submission of the respondent herein

that since the sentences imposed upon the petitioner on

June 8, 1971 for the misdemeanors committed by him were

conditional discharges, and the said convictions carry no

Se TS ee Ce DA ena

disabilities such as loss of civil rights, the doctrine of

mootness can properly be applied after the period during

which such sentences can be revoked which, in the State of

New York, is one year from the date of each of such

original sentences during which time the petitioner could

have been sentenced either under Section 208 of the former

New York Mental Hygiene Law, or under Section 70.15

of New York’s Penal Law if, at the time of recall, the

petitioner was no longer an addict. See Section 65.05(3)

(b), New York Penal Law, supra. Neither New York law

nor federal law imposes any further penalty for conviction

of the misdemeanors involved in this petition. Conse-

quently, the State of New York is constrained to rely on

the authority of the majority holdings in Jacobs v. New

York, 388 U.S. 481, 87 S. Ct. 2098 (1967), supra, and

Tannenbaum v. New York, 388 U.S. 489, 87 S. Ct. 2107

(1967), rehearing denied, 389 U.S. 892 (1967), supra.

There is no pecuniary interest in the outcome of any

appeal in this Court for there is nothing which can be

claimed to be the subject of forfeiture. To reiterate, there

is also no loss of civil rights. Compare Fiswick v. United

States, 329 U.S. 211, 67 S. Ct. 224 (1946); United States

v. Morgan, 346 U.S. 502, 74 8. Ct. 247 (1954).

In St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910

(1943), this Court stated:

“A federal court is without power to decide moot

questions or to give advisory opinions which can-

not affect the rights of litigants in the case before

it. [Citations omitted.]” (Jd. at 42, 63 S. Ct. at

911.)

ewe ess. teen Er ee + CA eee e <a SE RT - ao Re

It is significant that in St. Pierre, supra, it was also

advanced:

“Petitioner also suggests that the judgment may

impair his credibility as a witness in a future legal

proceeding. But the moral stigma of a judgment

which no longer affects legal rights does not present

a case or controversy for appellate review.” (Jd.

at 43, 63 S. Ct. at 911-12.)

Unlike the appellant in Parker v. Ellis, 362 U.S. 574, 80

S. Ct. 909 (1960), the petitioner herein was represented by

counsel at all stages of the proceedings.

Since the petitioner was convicted of two misdemeanors

(Section 220.05 of the New York Penal Law [now re-

pealed],* and Section 220.45 of the New York Law, supra),

we are not here concerned with such recividist sentencing

provisions as found in Section 70.06 of New York’s Penal

Law, which authorizes an indeterminate sentence of im-

prisonment for a second felony offender, or in Section 70.10

of New York’s Penal Law, which provides for particular

treatment for a persistent felony offender. There is no

doubt that if the petitioner had been convicted of a felony,

instead of the present misdemeanors for which convictions

he now seeks review by this Court on the basis of pur-

ported infringement of his rights under the Eighth and

Fourteenth Amendments to the Federal Constitution, the

existence of such recidivist sentencing statutes as herein-

above referred to, which have been held not to be ex post

facto in nature (Spencer v. Texas, 385 U.S. 554, 559-60,

87 S. Ct. 648, 651 [1967]), might justifiably give rise to

the contention that the petitioner would encounter collateral

* N.Y. Sess. Laws of 1973, c. 276, sec. 18, eff. Sept. 1, 1973.

disabilities at a later dete should he be found guilty of

committing a subsequent felony within the time period pro-

vided for in the applicable statute (see, e.g., Section 70.06

of New York’s Penal Law, supra, subdivisions [ii], [iv]

and [v]). Fortunately, however, for the petitioner, there

is nothing in New York’s statutory law which will enable

any court to apply his misdemeanor convictions herein as

similar predicates for enhancing or stiffening the sentence

imposed for the commission of a later crime.

Chapter 276, Section 19, of the New York Session Laws

of 1973, effective September 1, 1973, which, when read

together with Section 18, now comprises Article 220, Con-

trolled Substances Offenses, provides for the elevating of

the grades of various crimes within said Article 220 if

there exists a prior conviciion for a drug-related offense.

However, it is the State’s respectful submission that the

rules of statutory construction appear to militate against

any holding that the present statutes encompassed within

the newly enacted Article 220, providing for the raising

of the grade of a drug-reiated crime committed after Sep-

tember 1, 1973 and followed by conviction,* are intended

to apply to any of the charges, the convictions for which,

now the subjects of this petition, took place prior to that

effective date. And there is strong reason to believe, since

not expressly found in new Article 220, and in the light of

the doubt as hereinafter demonstrated, that such might

well be the construction made by this State’s highest tri-

bunal should such issue be squarely presented before it at

any time in the future, notwithstanding the policy of

severity attached to New York’s present drug laws related

* See present Sections 220.12, 220.16(2). 220.34(2), 220.37(2),

220.39(2), and 220.55 of New York's Penal Law.

ee -

ween nae a a Rare Em wo

to the sale, possession, and use of narcotics and other dan-

gerous drugs, a legislative policy which an appellate court

might not consider frustrated if an in futuro construction

were to be adopted.

A leading authority on the new drug laws of New York

has highlighted the problems inherent in determining

whether drug-related convictions prior to September 1,

1973 can be deemed predicates for subsequent convictions

for “raised-grade” crimes under present Article 220.* It

is such problems indeed which make significant the prin-

ciple of law so cogently set forth by this Court in U nited

States Fidelity Co. v. Struthers Wells Co., 209 U.S. 306,

28 S. Ct. 537 (1908), wherein it was stated:

“There are certain principles which have been

adhered to with great strictness by the courts in

relation to the construction of statutes as to whether

they are or are not retroactive in effect. The pre-

sumption is very strong that a statute was not meant

to act retrospectively, and it ought never to receive

such a construction if it is susceptible of any other.

It ought not to receive such a construction unless the

words used are so clear, strong, and imperative that

no other meaning can be annexed to them or unless

the intention of the legislature cannot be otherwise

satisfied. [Citations omitted.]” (Jd. at 314, 28 S.

Ct. at 539.)

This principle of law has been consistently adhered to by

this State’s highest tribunal since as early as the case of

The New York and Oswego Midland Railroad Company V.

* ROSENBLATT, New York’s New Drug Laws and Sentencing

Statutes, 1973, Law Journal Press, N.Y. See Appendix A, infra, for

excerpts, and comments by the author of this brief.

Van Horn, 57 N.Y. 473, 477 (1874), and as recently as

Gleason v. Gleason, 26 N Y 2d 28, 36, 256 N.E. 2d 513,

516-17 (1970). In Gleason, the New York Court of Ap-

peals, albeit applying this rule of law, had no other alter-

native than to apply retroactivity to the statute therein

reviewed because the legislative purpose to do so had been

“unequivocally established” by an “unmistakable demon-

stration” (26 N Y 2d, supra at 36, 256 N.E. 2d at 517).*

But that does not appear to be so with regard to whether

the petitioner’s present convictions can serve as predicates

for elevating the degree of any crime under Article 220 for

which he may hereafter be arrested and convicted. Of

course, there is no present case law on the subject so that

the issue is not definitive. As pointed out by the author

of this brief in his comments in Appendix A, infra, con-

siderable doubt exists as to whether a retroactive applica-

tion would be legally sound with reference to the applicable

sections found within New York’s Article 220 of the Penal

Law, as presently constituted. Such confusion might well

inure to the petitioner’s benefit in the future should such

issue arise.

See, also, McKinney’s Consolidated Laws of New York

Annotated, Book 1, Statutes, Section 51(b), and cases

therein cited.

In view of the foregoing, therefore, since all of the lan-

guage of the pertinent sections within Article 220 of New

York’s Penal Law may be satisfied by giving it prospective

* And so is it “unequivocably established” by the verbiage and

rationale of the recidivist sentencing statutes, Sections 70.06 and

70.10, supra, of New York’s Penal Law, none of which statutes the

petitioner need be concerned with because of his present two mis-

demeanor convictions.

operation, so that the petitioner herein might not seriously

fear any collateral disabilities in the future by reason of

the present two misdemeanor convictions incurred prior to

September 1, 1978, it is respectfully urged that notwith-

standing the contrary position taken by then Mr. Chief

Justice WARREN in his dissenting opinion in Jacobs v. New

York, 388 U.S. 431, 434, 87 S. Ct. 2098, 2100 (1967), supra,

this Court would not be “straining the mootness doctrine” if

the said doctrine were to be applied to the instant petition,

a doctrine which the State of New York must advance at

this time.

The arrest and conviction of the petitioner, a nar-

cotic addict, for possession of heroin and the imple-

ments required to maintain his habit, did not violate

the constitutional mandate against “cruel and unusual

punishment,” in the absence of proof that his addiction

brought on such a deterioration of the mind so as to

fall within the ambit of New York’s test for criminal

responsibility as found in Section 30.05 of the Penal

Law, and where there is a concession that there is no

mental illness or incapacity within the intendment of

that statute. Any further inroad into that statute so

as to immunize mere addiction from criminai sanc-

tions would not be legally feasible and would tend to

be violative of this State’s public policy regarding the

safeguarding of the health, safety and morals of its

citizens.

A further reason for not granting this writ is based upon

the sovereign right of the State of New York to enact

legislation which it is constitutionally empowered to do

which will be in harmony with its public policy. This Court

pes SORE Dee Oe ee

has held that “it is for the lawmakers to determine the

state’s public policy” Twin City Pipe Line Co. v. Harding

Glass Co., 283 U.S. 353, 357, 51 S. Ct. 476, 478 (1930).

The statute governing criminal responsibility now in effect

in New York is both fair and wise in scope, and without

any constitutional infirmity.

The petitioner attempts to eschew and obfuscate the

provisions of Section 30.05 of New York’s Penal Law,

supra, the sole test within that jurisdiction for judging

criminal responsibility, by suggesting that the “trial court

found against petitioner on the erroneous assumption that

petitioner had not demonstrated mental incapacity within

the penal law’s allowance for the insanity defense” ( Peti-

tion, p. 12). Yet, notwithstanding such contention, peti-

tioner relies on the very language of Judge Jasen of the

New York Court of Appeals, who, in speaking for the court

below, definitively refers to the “far-reaching ramifications

for common-law doctrines of criminal accountability”

(Petition, p. 9), thus, in effect, approving the trial Judge’s

approach in constituting Section 30.05 as the proper guide-

line for assessing criminal responsibility for the commission

of the proscribed acts herein within the State of New York.

When we analyze the World Health Organization’s defi-

nition of addiction relied upon the petitioner (Petition, n.

6 at p. 6), the mental attitude displayed by an addict plays

substantia!ly the same vital role as do the thought processes

related to the volition of those beset by other mental aber-

rations and, who, upon the commission of their own inter-

dicted acts, are required to be judged by the standards of

this salutary and reasonable provision of the law. Thus,

a holding that mere addiction is sufficient to justify free-

RF a A aE MS eS af ee SN eee ‘

dom from criminal sanctions for the possession of heroin

and the implements required to maintain the habit, as peti-

tioner contends, would virtually license an addict “to com-

mit any criminal act—including the sale of drugs—that he

considers necessary to support and maintain his habit”

(United States v. Moore, 486 F. 2d 1139, 1208 [D.C. Cir.

1973], cert. denied, US. , 94S. Ct. 298 [1973] ;

Robb, Cir. J.). There would be those who would soon en-

dorse the view that “the more desperate bar" robber for

drug money has even a more demonstrable lack of free will

and derived from precisely the same factors as appellant

argues should excuse the mere possessor” (486 F. 2d, supra

at 1146; emphasis in original; Wilkey, Cir. J., affirming the

convictions and sentences). Even the supplier of the nar-

cotics would soon find comfort by rationalizing his conduct

as humane (see id. at 1147; Wilkey, Cir. J.). To the same

effect, see Judge Jasen in the opinion below (Petition, Ap-

pendix A, pp. A-7, A-8).

If a mere narcotic addict is to be permitted to possess and

use drugs, how shall we determine how much he shall have

and use at any one time in order to satisfy his personal

habit? And who can say with reasonable certainty that

a particular addict in possession of narcotics will not sy-

phon off a portion of it for the purpose of selling it? It was

recognized in United States v. Ashton, 317 F. Supp. 860,

862 (U.S.D.C. D.C. 1970) that “[i]t is a matter of common

knowledge that most addicts sell narcotics from time to

time to finance their habit, or trade heroin for the favor

of food or lodging, or give drugs to friends facing with-

drawal.” Indeed, one of the petitioner’s defense witnesses

himself pushed drugs while he was taking them (253).

Then again, who will judge whether the heroin possessed

by an addict is of a purity more than adequate for his in-

take? In other words, is the heroin in the possession of the

addict of a quality stronger than he actually needs so that

he would be able to prepare additional heroin for sale in the

open market? Law enforcement would be relegated, in a

large measure, to determining whether persons possessing

narcotics were, first, drug addicts, and second, whether the

narcotics found on the alleged drug addict was in an

amount not exceeding the required amount for his own

habit. Problems like these would appear capable only of

being solved by the State of New York by opening up facili-

ties with specially trained personnel, and at great expense

to the public, in order to make such determinations. In

time, the State of New York would indeed be administering

to a “sick society.” Public interest and progress would be

made subservient to such procedures. In short, such al-

ternatives would be unthinkable and would lead to the next

step of assisting other persons with psychopathic person-

alities, such as rapists, kleptomaniacs, pyromaniacs, with

the outlets which they require to satisfy their own particu-

lar urges.* The matter, thus, reaches the posture of an

argument reductio ad absurdum.

The World Health Organization’s definition of heroin

dependence (Petition, n. 6 on p. 6) includes as one of the

characteristics of such dependence “[a]n overpowering de-

sire or need to continue taking the drug and to obtain it

by any means” (emphasis supplied). Before one should be

* As a matter of fact, most of these unfortunate persons are less

responsible for their “afflictions” than those who embark on the drug

habit in a free and willing manner. The petitioner is not a person

whose addiction was incurred in his mother’s womb. His addiction

was brought on by “reasoned choice.”

able to be absolved from criminal responsibility for posses-

sion of heroin and implements because of his addiction and

to assure the citizen that he will not be victimized by a nar-

cotic addict while on the quest of obtaining a “fix” by any

means, which certainly encompasses resort to crime, violent

or otherwise,* some thought should be given to the sound

statement by then Circuit Judge Burger, now Chief Justice

of this Court, in Castle v. United States, 347 F.2d 492, 494

(DiC. Cir. 1964), cert. denied, 381 U.S. 929, 953 (1965),

that “the core of the problem .. . is not one of labels

whether ‘disease’ or ‘addiction’ but whether an abnormal

condition of the mind has substantially impaired the

accused’s capacity to control his behavior.”** And this “ab-

normal condition,” it is respectfully urged, must reach the

level required by Section 30.05 of the New York Penal Law,

supra.

It appears that defense counsel has misdirected his sym-

pathies by implying that the needs of a drug addict are

stronger than those of the other psychopathic personalities

hereinabove referred to. To forgive the narcotic addict for

* “Narcotic addicts are estimated to be responsible for one-half

the crimes committed in the city of New York alone and the problem

of narcotic addiction is rapidly spreading into the suburbs and other

parts of the state. This threat to the peace and safety of the in-

habitants of the state must be met. Not only crime, but unemploy-

ment, poverty, loss of human dignity and of the ability to fill a

meaningful and productive role in the community, as well as damage

to the physical and mental health of the addict himself are all by-

products of this spreading disease” (Section 200, former New York

Mental Hygiene Law, Declaration of purpose; now Section 81.01,

Revised Mental Hygiene Law, L. 1972, c. 251, eff. Jan. 1, 1973).

** In Castle, the same Report of the World Health Organization

referred to as Technical Report No. 21, p. 6 (1950), was before the

court.

(Se er ee RT mS

the commission of crimes prompted by the need for nar-

cotics, particularly the possession of narcotic contraband,

is not as legalistic an approach as the impelling need to

protect society, particularly the actual victims, from those

who will be required to engage in crime because of narcotic

addiction. Just as overwhelming hunger does not justify

homicide and cannibalism even to avoid certain starvation

(see Queen V. Dudley & Stevens, 14 Q.B. 273), so does not

the overwhelming hunger for narcotics, even if that be the

case with the instant petitioner. Neither do the urges per

se of the rapist, nor those of the pyromaniac, or of the

kleptomaniac, result in absolution in the eyes of our Penal

Law. More is required. See LEVIN, COMPULSION, which

deals with the “irresistible impulse” argument so eloquently

pursued by Clarence Darrow in his famous defense of the

brilliant, but unfortunate youths, Loeb and Leopold. See,

also, CONRAD, MR. SEWARD FOR THE DEFENSE.

Surely, it would not be expedient in the light of present-

day medical knowledge to adopt any rule for drug addiction

without more which would be patterned on what is already

scientificaily known and accepted by medical authorities in

the field of mental diseases. It is respectfully urged that ap-

pellations such as “irresistible urge,” “irresistible compul-

sion,” “irresistible impulse,” “irresistible drive,” “‘uncon-

trollable craving,” ‘“‘morbid propensity,” and a host of other

strong and forbidding descriptions suggesting some form

of monomania or insanity, be carefully serutinized when

applied to a drug addict who, as the present record shows,

is one whose actions were knowing, intelligent, deliberate,

and coherent. And, as the trial judge stated below. that

“‘fw]hile compulsion there may have been, it was not so

RIP CE TERIOR LO TAO, BO 0 oD NRE BE Soe Sw OF we PEDO ITP TLE VID OS AOS

virulently overriding as to demolish all caution and care in

the use of the drug” (Petition Appendix, p. C-10).

The availability of a drug-dependence defense for mere

addiction has not been recognized in various federal juris-

dictions. Drug addiction must be of such significance that

the trier of the facts must determine whether at the time of

the crime a defendant had a mental disability and, if such

disability is determined to have existed, whether his act

was the product of that infirmity. See Lloyd v. United

States, 343 F. 2d 242 (D.C. Cir. 1964), cert. denied, 381

U.S. 952 (1965) ; Castle v. United States, 347 F. 2d, supra

at 495; Heard v. United States, 348 F. 2d 438, 44 (D.C. Cir.

1965) ; United States v. Freeman, 357 F. 2d 606, 625 (2d

Cir. 1966) ; Bailey v. United States, 386 F. 2d 1 (5th Cir.

1967) ; Gaskins v. United States, 410 F. 2d 987, 989 (D.C.

Cir. 1967) ; and Smith v. Follette, 445 F. 2d 955, 961 (2d

Cir. 1971).* In Lloyd, Castle, Bailey, and Smith, supra, the

defendants were charged with crimes of a narcotic context

and at trial set up defenses of mental incapacity because of

drug addiction. In Bailey, supra, the defendant had con-

tended that since he was addicted to narcotics and had been

unable to cure his addiction, he was not able to resist the

daily use of heroin, adding further that his addiction was in

the nature of a disease which brought about a compulsion

to procure and use narcotics and because of such compul-

sion, he could not be held criminally responsible. In dismiss-

ing the contention, after stating that “‘a mere showing of

* It was in United States ex rel. Kyle v. Mancusi, a companion case

to Smith v. Follette, that the defendant, a narcotic addict, was con-

victed of the crime of criminal possession of a dangerous drug; the

defendant in the Smith case, also a narcotic addict, was charged with

the sale of marijuana.

AR ee ek ere . et te

narcotics addiction, without more, does not constitute “some

evidence” of mental disease or insanity so as to raise the

issue of criminal responsibility [citations omitted]’” (386

F.2d, supra at 4), the court went on to say that “the record

contains no evidence probative of the contention that addic-

tion eliminates the criminal intent of a narcotics offender.

It would appear that an element of reasoned choice yet

exists when an addict knowingly violates the law in acquir-

ing and using drugs [footnote omitted]. One is not excused

for offending simply because he wanted to very, very badly

[footnote omitted].” (Ibid.)* It is interesting to note that

a similar theory has been applied to chronic alcoholism

where it has been held that that condition is not per se

sufficient to raise the criminal responsibility issue (see Salz-

man V. United States, 405 F. 2d 358 [D.C. Cir. 1968]).

Although Section 30.05 of the New York Penal Law makes

broader and more liberal the M’N aghten Rules or test enun-

ciated in the famous M’Naghten Case** (Rules which have

long been considered outmoded by eminent jurists***), by

substituting “substantial capacity” for “total impairment,”

the totality of the evidence in the instant case, as will be

* Some State cases rejecting such a defense are People v. Perez,

41 A D 2d 903 (2d Dept., N.Y. 1973); People v. Nettles, 34 Ill. 2d

52, 213 N.E. 2d 536 (1966), cert. denied, 386 U.S. 1008 (1967);

People v. Luckey, 90 Ill. App. 2d 325, 234 N.E. 2d 26 (1967);

People v. Jackson (Henry, Jr.), 40 Ill. 2d 143, 238 N.E. 2d 383

(1968); People v. Jackson (Samuel Lee), 253 N.E. 2d 527 (1969);

and, Nutter v. State, 8 Md. App. 635, 262 A. 2d 80 (1970). Com-

pare People v. Myers, 39 A D 2d 122 (2d Dept., N.Y. 1972).

See, also, United States v. Williams, 8 CrL 2460 (March 4, 1971)

(D.C. Super Ct.); Wheeler v. United States, 276 A. 2d 722 (D.C. Ct.

App. 1971).

** 10 Clark and Fin. 200, 210 (1843).

*** See United States v. Freeman, 357 F. 2d 606 (2d Cir. 1966),

supra at 619 and nn. 41 & 42.

hereinafter demonstrated, nevertheless precludes any ap-

plication of the statute so as to accrue to the petitioner’s

benefit. Nowhere in New York’s statutory scheme, or in

the case law of this State, is there any recognition that

drug addiction alone (in a drug-related criminal act which

victimizes another, or in a criminal act inherent in the

addiction, as is possession of a dangerous narcotic drug

and the paraphernalia employed to administer it) is suffi-

cient to bring into operation the provisions of Section 30.05

of the New York Penal Law, supra, so as to constitute a de-

fense to a prosecution. Albeit the New York State Legisla-

ture hag made reference to drug addiction as a “disease,”

and has characterized a drug addict as a sick person who

requires treatment,” it is no doubt because there was, and

continues to be, a strong societal desire to accord to drug-

oriented criminality a humanitarian attitude so that a re-

habilitory approach can be encouraged rather than one that

is exclusively punitive. However, this humanitarian attitude

is not intended to eschew the doctrine of subjecting the

drug-addicted offender to the criminal processes of the law,

but, rather, to implement those processes with whatever

programs may then be available by which the narcotic ad-

dict may be assisted in alleviating his drug problem so that

he can avoid future conflicts with the criminal law, conflicts

which are ofttimes stimulated by his addition.

Any expansion of the present New York legislative view

of criminal responsibility as found in Section 30.05, which

*See Section 200(1), (2), of the former New York Mental

Hygiene Law, in effect at the time of petitioner’s trial, and renum-

bered Section 81.01(a) of the Revised Mental Hygiene Law. The

newly enacted Section 81.01(b) refers to drug dependence as “this

spreading disease” (N.Y. Sess. Laws 1973, c. 676). See, also,

People v. Fuller, 24 N Y 2d 292, 301, 248 N.E. 2d 17, 20 (1969).

RA = er rrmne- serene en +

would have been brought about by New York’s highest

tribunal, simply because a person is a narcotic addict, with-

out more, would have been an unwarranted usurpation of

the legislative function. As was significantly stated by then

Judge Cardozo (later an Associate Justice of this Court)

in Sexauer & Lemke v. Luke A. Burke & Sons Company, 228

N.Y. 341, 345, 127 N.E. 329, 331 (1920), “Freedom to con-

strue is not freedom to amend.” In United States v. Moore,

486 F. 2d 1139 (D.C. Cir. 1973), supra, a case which bears

strongly on the very same issue before this Court,* Circuit

Court Judge Wilkey had this to say about a court’s power

to legislate:

“Just as Justice Black turned away from the pro-

posed constitutional rule, we spurn the proposed

‘common law’ rule, not only because the recently

created statutory scheme of dealing with narcotics

addicts stands a reasonable chance of reaching the

objectives of ‘deterrence, isolation, and treatment,’

but also because the particular nature of the problem

of the heroin traffic makes certain policies necessary

that should not be weakened by the creation of this

defense. There is no compelling policy requiring us

to intervene here [footnote omitted].

“Furthermore, if such a judgment weighing and

balancing conflicting public interests and policies

* Although in the Moore case, unlike the instant appeal, the evi-

dence indicated that the defendant “was not a mere non-trafficking

addict but was in fact engaged in the drug trade (id. at 1144 & n. 6).

See, also, id. at 1206. Notwithstanding this, however, Circuit Judge

Wilkey stated, “Yet even if we were to assume that appellant was a

simple addict and nothing more, we believe that his conviction must

be sustained” (id. at 1144). The majority was not willing to create

an “addiction defense” to a charg: involving the possession of nar-

cotics.

et Ee ee ee ee ee ee >

is to be made, it should be made by Congress, which,

as we explore more fully infra, has by its activity

in this area demonstrated both that it possesses more

adequate facilities to deal with the problems of nar-

cotic addiction, and that we in the judiciary are

somewhat circumscribed in our activity in this area

[footnote omitted]. [/d. at 1147-48. ]

“The problem with our making the choice that ap-

pellant urges is that, unlike common law judges who

were perhaps the major legal policy-making body

before the rise of the parliamentary system as we

know it today, this court is not the appropriate body

to make such a policy judgment. Congress 1s now the

best forum with resources adequate to determine

the implications of such a policy, to evaiuate the

social, scientific, and psychological premises under-

lying such a policy, to make the appropriate rules,

and to establish the necessary mechanisms (includ-

ing the funding) to carry them out. [Jd. at 1154.]

“While Congress has not explicitly provided that

addiction shall not be an affirmative defense to a

charge of possessing illicit narcotics, the congres-

sional intent to prosecute drug users expressed in

D.C. Code $ 24-601, buttressed by Congress’ legis-

lative activity both before and after that expression

of legislative intent, demonstrates that Congress has

preempted this court’s authority to create a common

law defense. It is hornbook law that when the legis-

lature has spoken, what might have been the com-

mon law is altered, and judges (including this

court) may not change the law back because they

would have favored a different policy, unless there is

a constitutional mandate, which, of course, would

operate irrespective of judicial preferences. [Jd. at

1156; emphasis in original. ]

* * * * *

“Congress has not ceased to attempt to fashion

new ways to deal with these problems of narcotics

addiction; [footnote omitted] hence, on the shaky

foundations—constitutional, precedential, interpre-

tative—advanced by appellant, it would be unthink-

able to write our own new law that might undercut

some of these congressional efforts [footnote omit-

ted]. We are supported in our conclusion by Judge

Leventhal’s eloquent and exhaustive analysis of

Congress’ intent in passing the various enactments

discussed above and the consequent need for judicial

restraint. [Jd. at 1158-59.]

“Our reluctance to make new law is not, as Judge

Wright appears to suggest, ‘to shut our eyes in ig-

norance and allow injustice to persist in blind

imitation of the past’ [footnote omitted]. Our course

of action is simply to leave the innovations in this

area to a body more capable of making decisions on

them than are we. The extremely difficult and com-

plex questions involved in the problems of rehabili-

tation of addicts and elimination of the illicit drug

traffic are best solved by the kind of extended debate

and investigation possible in the legislature. Judicial

modesty and restraint may not make the headlines,

but they have their place.” (Jd. at 1159.)

Petitioner lays great stress (Petition, p. 9) upon the

statement of Mr. Justice WHITE, who, in affirming the

conviction of a chronic alcoholic for public intoxication in

Powell v. Texas, 392 U.S. 514, 88 S. Ct. 2145 (1968),

“If it cannot be a crime to have an irresistible

compulsion to use narcotics, Robinson v. California

..., 1 do not see how it can constitutionally be a

crime to yield to such a compulsion. Punishing an

addict for using drugs convicts for addiction under

a different name. Distinguishing between the two

crimes is like forbidding criminal conviction for be-

ing sick with fiu or epilepsy but permitting punish-

ment for running a fever or having a convulsion.

Unless Robinson is to be abandoned, the use of nar-

coties by an addict must be beyond the reach of

the criminal law. Similarly, the chronic alcoholic

with an irresistible urge to consume alcohol should

not be punishable for drinking or for being drunk.”

(392 U.S., supra at 548-49; 88 S. Ct. at 2162; em-

phasis supplied. )

It is important to note that Mr. J ustice WHITE refers to

the terminology of “irresistible urge,’”* and by prefacing

the last sentence of the quoted material with the word

“[slimilarly,” it becomes apparent that before the “use of

narcotics by an addict . . . be beyond the reach of the crim-

inal law,” there must also exist that same “irresistible

urge.” It is respectfully submitted that the view expressed

by Mr. Justice WHITE must be read in that light. If not,

the mere addict would be free to carry drugs to his and

society’s detriment. The facts in the case at bar belie the

existence of the “irresistible urge” referred to by Mr. Jus-

tice WHITE, and just as he felt in Powell that “ [njeither in

the medical testimony nor elsewhere is there any indication

that Powell had reached such a state of intoxication that he

had lost the ability to comprehend what he was doing or

* Mr. Justice MARSHALL, in the plurality opinion, rejected the trial

court’s findings of fact, and concluded that on the state of the record

there was no showing that chronic alcoholics, and the defendant in

icular, suffered from an “irresistible compulsion” to drink (392

‘S. at 535, 88 S. Ct. at 2155).

or “?

where he was,” and that “Powell at the time knew precisely

where he was, retained the power to stay off or leave the

streets, and simply preferred to be there rather than else-

where,” and that he “showed nothing more than that he

was to some degree compelled to drink...” (392 U.S., supra

at 553-54, 98 S. Ct. at 1265-65), so is the State now con-

strained to argue that there likewise is no showing that the

petitioner “had lost the ability to comprehend what he was

doing or where he was,” and that he “simply preferred”

to enjoy the euphoria that the injection of heroin would

bring him, rather than endure the “enforced abstinence”

which he underwent at the time of incarceration, particu-

larly when he served a three-month sentence (95-96) ; when

he committed himself to Interfaith Hospital in November,

1970, after having the reasoned choice to attempt to have

himself admitted on five prior occasions (102) ;* when he

stopped using drugs for several days after his wife had

requested it (134-35); and when he did not wish to join

“somebody high walking down the street’ because he did

not feel that ... [he] wished to join him” (133). There

was also some testimony that the petitioner would be grad-

ually veered away from drug use at the Addiction Research

and Treatment Corporation methadone program (206). In

* The question can be posed as to why the petitioner could not have

again voluntarily committed himseif to some facility or program when

he knew it would be of great value to him, even if not for the primary

purpose of detoxification? One would think that if he were possessed

of a reasoned choice to commit himself to Interfaith Hospital during

a period of “compulsion” or “craving” to ingest heroin, he would

certainly have more freely wanted to seek aid from any one of the

many available agencies and programs interested in his problem when

he was not under stress. It seems that he chose to be indifferent!

The defendants in Castle v. United States, 347 F.2d, supra at 493,

and United States v. Freeman, 357 F.2d. supra at 611. had also during

the period of their addiction voluntarily committed themselves to

hospitals for treatment.

addition, testimony was forthcoming that the petitioner

could control his habit when he took methadone (120), and

that when he was in jail for three months and not ill for

about the latter two months of that period, he nevertheless

went back to heroin only a week after being released from

jail (128). And this albeit he had had none of the symptoms

of withdrawal for most of the time he was in jail (128-29).

If his use of narcotics was motivated by the desire to avoid

such symptoms, then it would be highly inconsistent to state

that the petitioner had no reasoned choice when he returned

to the use of heroin at a time when the dreaded withdrawal

symptoms were no longer there to plague him.

In addition, it is significant that as a witness in his own

behalf, the petitioner testified as follows:

“The Court: There are times, as you tell us,

when you skin pop and there are other times when

you put the narcotic into your vein

The Witness: Yes.

The Court: How is it that you arrive at a de-

cision to do one or the other?

The Witness: Well, I was afraid of having an

overdose.

The Court: You mean, it is not possible to get

an overdone just skin popping?

The Witness: I don’t think so” (111-12).

It would appear that the caution and intelligent conduct

with which the petitioner approached the use of heroin

would belie any contention whatever that his compulsion

to use this dangerous narcotic drug was so strong that it

deprived him of rationality and thereby should vindicate

him from the crimes he had committed. It would be un-

reasonable to state that his compulsion to use the drug was

ote rr ary

ea RPO Ah Tan RPE BARI OS

so overwhelming as not to make him a fit subject for prose-

cution, on the basis of the claim made by counsel herein

that the very nature of petitioner’s addiction “precluded

him from the avoidance of the use of drugs and the neces-

sary implements” (Petition, p. 12). The totality of the

evidence adduced at the trial of this case, particularly when

we weigh the testimony of the petitioner himself, precludes

any determination that “he had lost the ability to compre-

hend what he was doing or where he was,” the rationale

which is the heart of Mr. Justice WHITE’S statement in the

Powell case. The record in the instant case, therefore,

shows a person, who, in seeking oblivion by the use of

heroin, took a path leading to it which was far from

irrational or beyond his control.* The portrayal of the

petitioner simply would make unwarranted any charac-

terization of him as a person with a claim of such significant

magnitude that this Court should be constrained to grant

the writ herein sought. The history of his addiction as

revealed in the record of the case might well not cast him

to be the proper party capable of stimulating a justiciable

issue before this Court (see 28 U.S.C.A., Section 1257, nn.

63, 64, 70, 71, 73, 92). The petitioner had not been demon-

strated to be a “lost cause” at the time he was apprehended.

It is this, therefore, which should effectively preclude him

from any consideration of entitlement to a defense pre-

dicated upon mere drug addiction. Insofar as he is con-

cerned, the punishment imposed upon him for the criminal

acts involved was constitutionally proper and merits no

review by this Court. All he is actually faced with, it is

* The petitioner does not represent the “extreme” case referred to

by then Chief Judge Fuld in People v. Borrero, 19 N Y 2d 332, 335,

227 N.E. 2d 18, 20 (1967).

[ennai

respectfully suggested, is a record of conviction, the stigma

of which is unavoidable. See Powell v. Texas, 392 U.S.,

supra at 539, 88 S. Ct. at 2157-58; Mr. Justice BLACK

affirming the defendant’s conviction, in which Mr. Justice

HARLAN joined, referring to drunkenness when it is labeled

a “crime.”

While the petitioner’s professional and medical testi-

mony is impressive, none of that testimony tends to sub-

stantiate any claim that the petitioner was so mentally

impaired as a result of his drug addiction that he ought to

be relieved from all responsibility of possessing narcotics

and narcotic implements, the possession of which had

never been disputed. Eloquent presentations concerning

drug addiction and its consequences, generally, abstractly

and hypothetically presented, cannot inure to the benefit

of the instant petitioner since such generalities do not point

up any reasons why such proffered principle of criminal

absolution should be made applicable to him. To do so,

would violate the principle already enunciated that drug

addiction alone will not excuse one from answering for

his crime, albeit that crime is concerned with the posses-

sion of drugs or implements for personal use, a theory

which the petitioner advances in his petititon. In Castle

y. United States, 347 F. 2d 492 (D.C. Cir. 1964), cert.

denied, 381 U.S. 929, 953 (1965), supra, the court (then

Circuit Judge Burger, concurring in result) refused to

accept “[t]he general comments on narcotics addiction

drawn from appellant’s brief [which] are simply a sum-

mary of the views of some writers on the subject.” (id. at

495). Judge Burger also added that “Tnjeither this court

nor any other court has ever held that drug addiction is per

se a form of mental disease or ‘insanity’ in the context of

[ppep eases es reac enemas sername: 8 erase

assessing criminal responsibility (ibid.). The opinion of

Judge Wright below indicates, also, this failure of specific

proof regarding the petitioner’s mental impairment by

more direct testimony on the part of the “professional

and medical” witnesses (Petition, Appendix C, p. C-19).

Interestingly enough, Judge Wright, in referring to peti-

tioner’s expert witnesses, states that they “circle warily

around, but do not quite approach, addiction as an impair-

ment of the mind so grave as to simulate insanity” (id. at

C-8).

It must be recognized that notwithstanding the conces-

sion of heroin addiction in this case, and the formulated

definitions of a “drug addict” or “drug dependent” person,

which, at times, create the aura of hopeless futility,* there

are, as with alcoholics, different degrees of addiction. Thus,

cures do occur for there is the “phenomenon of remission

and self-abstinence” (see United States v. Moore, 486 F.

2d, supra at 1193; Leventhal, Cir. J.). If the revised New

York drug laws connote that the former Narcotic Addiction

Control Commission treatment is a failure (now Drug

Abuse Control Commission [Section 81.07 of the Revised

Mental Hygiene Law] ), as petitioner alludes (Petition, n.

12 at p. 11), the failure lies primarily with the addict

whose cooperation is the key as to whether any program

will or will not be successful. As Judge Jasen has stated

in the opinion below: “[P]unishment may persuade some

addicts to undertake rehabilitation through various State

or private programs” (Petition, Appendix A, p. A-8).

* See Matter of James, 22 N Y 2d 545, 551, 240 N.E.2d 29, 32

(1968): 21 U.S.C., Section 802(1) (1970); 42 U.S.C., Section

201(g) (1970); and World Health Organization definition (Petition,

n. 6 at p. 6).

Petitioner stresses the fact that at the time of his appre-

hension he “begged the officer to let him complete... [the

injection which] vividly depicts, in human terms, the an-

guish of the addiction illness” (Petition, p. 12). This is no

more proof of a showing of a “compulsive psychological

drive,” which Dr. Primm, one of the defense witnesses,

described as “patho-pathological,” and which the petitioner

points out (Petition, pp. 6-7), than would be an offer of

a bribe to avoid incarceration and a criminal record. If the

appellant had to “shoot up,” might he not have put up some

struggle for the opportunity to do so? The record does not

indicate any such struggle.

In United States v. Moore, 486 F. 2d 11389 (D.C. Cir.

1973), supra, Circuit Judge Leventhal, in his opinion affirm-

ing the convictions, explains the statement of Mr. Justice

WHITE in Powell, hereinbefore referred to, in the following

fashion:

“As already noted, Robinson said expressly that

the state could punish purchase or possession of a

narcotic drug. The Court was doubtless aware

that just such a possession provision is part of the

Uniform Narcotic Drug Act in effect in most states.*

Justices Warren and Black subscribed not only to

Robinson but also to the opinion affirming Powell’s

conviction as based on an actus reus.

“Justice White’s statement must be read in the

framework not only of his votes to uphold the con-

victions of both Robinson and Powell, but of his

statement that punishment for an offense can be

+ (Footnote in quoted material of Leventhal, Cir. J.)

“Justice Douglas, who joined in the Robinson opinion,

added a concurrence which noted, 370 U.S. at 660, that the

Uniform Act does not punish addiction.”

ROT ee SP CE ES ee

related to the exercise of will at some previous time

—at least if the willed acts were not ‘remote in

time.’+ This indicates that punishment for the

offense of possession may be justified constitution-

ally, notwithstanding a claim of present lack of

controi capacity, by reference to some not-too-remote

choice of the addict to eschew rehabilitation treat-

ment available. This is significantly different from

the standard approach of e.g., the insanity defense,

as exemplified by the ALI rule, which focuses on

lack of capacity at the time of the offense, to control

the conduct.

“Also revealing of Justice White’s approach is

his concluding passage, 392 U.S. at 553-54, that a

defense is not established by the mere existence of

compulsion ‘to some degree,’ where the defendant

has not made a showing that he was ‘unable’ to

avoid the condition made criminal.++ There is a

+ (Footnote in quoted material of Leventhal, Cir. J.)

“Justice White said, 392 U.S. at 550-51 note 2:

By precluding criminal conviction for such a ‘status’ [narcotic

addiction] the Court [in Robinson] was dealing with a condi-

tion brought about by acts remote in time from the application

of the criminal sanctions contemplated, a condition which was

relatively permanent in duration, and a condition of great

magnitude and significance in terms of human behavior and

values. ... If it were necessary to distinguish between ‘acts’

and ‘conditions’ for purposes of the Eighth Amendment. I

would adhere to the concept of ‘condition’ implicit in the opin-

ion in Robinson. ... The proper subject of inquiry is whether

volitional acts brought about the ‘condition’ and whether those

acts are sufficiently proximate to the ‘condition’ for it to be

permissible to impose penal sanctions on the ‘condition.’ ”

++ (Footnote in quoted material of Leventhal. Cir. J.)

“Justice White upheld the conviction of Powell. even as-

suming he ‘established that he could not have resisted becom-

ing drunk on December 19, 1966." *. . . Powell showed nothing

more than that he was to some degree compelled to drink and

that he was drurk at the time of his arrest. He made no

showing that he was unable to stay off the streets on the night

in question.” 392 U.S. at 533-54.”

plain implication that defendant would have the

burden of proof.

“Taking Justice White’s opinion and votes as a

whole, we conclude that his approach does not under-

cut Justice Marshall’s opinion on the constitutional

permissibility of holding even narcotic addicts for

the intentional action of possession, without recog-

nition of a new defense of psychological dependence

that poses difficult problems of verifiability and

widespread use. To the extent that those contending

for a dependence defense are ready to accept con-

victions under state statutes, without provision for

such a defense, their submission plainly lacks con-

stitutional requirement, even though it may be per-

meated with constitutional discussion.” (Jd. at

1197-98.)

To interdict the possession of narcotics by a narcotic

addict while at the same time not criminally punishing

him for his “status,” is not as irreconcilable as it may

appear at first blush. Did not Stanley v. Georgia, 394 U.S.

557, 89 S. Ct. 1243 (1969), in the majority opinion, hold

an obscenity statute in Georgia unconstitutional as violat-

ing the First and Fourteenth Amendments for imposing

criminal sanctions upon the mere knowing possession by

an individual of obscene matter in the privacy of his home

even though “the States retain broad power to regulate

obscenity” (id. at 568)? Yet, in United States v. Thirty

Seven (37) Photographs, 402 U.S. 363 (1971) 91 S. Ct.

1400, rehearing denied, 403 U.S. 924, 91 S. Ct. 2221

(1971), the Court held that “[t]he trial court erred in read-

ing Stanley as immunizing from seizure obscene materials

possessed at a port of entry for the purpose of importation

for private use” (id. at 376). And it is interesting to note

that it was Mr. Justice WHITE who announced the judgment

of the Court in an opinion in which Mr. Chief Justice

BuRGER and Mr. Justices BRENNAN and BLACKMUN joined,*

upon whose statement in Powell v. Texas, 392 U.S., supra,

at 548-49, 88 S. Ct. at 2162, the petitioner now so strongly

relies (Petition, p. 9).

Notwithstanding the holding in Robinson.v. California,

370 U.S. 660, 82 S. Ct. 1417 (1962), that case did not an-

nounce that narcotic addiction is a mental illness in any

context of criminal responsibility, and expressly reserved

the right of a “State... to impose criminal sanctions...

against the unauthorized . . . possession of narcotics with-

in its borders,” and that “the range of valid choice which

a State might make in this area is undoubtedly a wide one,

and the wisdom of any particular choice within the allow-

able spectrum is not for us to decide” (370 U.S., supra at

664-65), 82 S. Ct. at 1419-20; Mr. Justice STEWART ex-

pressing the views of five members of the Court).

Likewise, it is also significant that in Powell v. Texas,

supra, in the prevailing opinion of Mr. Justice MARSHALL,

it was announced that the “entire thrust of Robinson’s in-

terpretation of the Cruel and Unusual Punishment Clause

is that criminal penalties may be inflicted only if the ac-

cused has committed some act, has engaged in some be-

havior which society has an interest in preventing, or

perhaps in historic common law terms, has committed some

actus reus” (392 U.S., at 533, 88 S. Ct. at 2154-55; em-

phasis supplied) . And the State of New York also deems

it worthwhile to point out the cogent language of Mr.

* Mr. Justice STEWART and HARLAN also joined in Part I of the

opinion which is not pertinent herein.

PAR OBO TLIO EOI A ts PO

ee ee

Justice BLACK in the Powell case, who, in the concurring

opinion, with whom Mr. Justice HARLAN joined, stated:

«To adopt [the position taken by the peti-

tioner herein] would significantly limit the States

in their efforts to deal with a widespread and im-

portant social problem and would do so by announc-

ing a revolutionary doctrine of constitutional law

that would also tightly restrict state power to deal

with a wide variety of other harmful conduct.

“Those who favor holding that public drunkenness

cannot be made a crime rely to a large extent on

their own notions of the wisdom of such a change

in the law. A great deal of medical and sociological

data is cited to us in support of this change. Stress

is put upon the fact that medical authorities con-

sider alcoholism a disease and have urged a variety

of medical approaches to treating it. It is pointed

out that a high percentage of all arrests in America

are for the crime of public drunkenness and that

the enforcement of these laws constitutes a tremen-

dous burden on the police. Then it is urged that

there is no basis whatever for claiming that to jail

chronic alcoholics can be a deterrent or a means of

treatment; on the contrary, jail has, in the expert

judgment of these scientists, a destructive effect.

All in all, these arguments read more like a highly

technical medical critique than an argument for

deciding a question of constitutional law one way

or another.

“Of course, the desirability of this Texas statute

should be irrelevant in a court charged with the

duty of interpretation rather than legislation, and

that should be the end of the matter. But since

proponents of this grave constitutional change in-

sist on offering their pronouncements on these ques-

tions of medical diagnosis and social policy, I am

compelled to add that, should we follow their argu-

NT eS URE EE AS POE IBC Ss

ments, the Court would be venturing far beyond the

realm of problems for which we are in a position to

know what we are talking about. [392 U.S. at 537-

38; 88 S. Ct. at 2156-57; emphasis supplied. ]

* * * * *

“Apart from the value of jail as a form of treat-

ment, jail serves other traditional functions of the

criminal law. For one thing, it gets the alcoholics

off the street, where they may cause harm in a

number of ways to a number of people, and isolation

of the dangerous has always been considered an im-

portant function of the criminal law. In addition,

punishment of chronic alcoholics can serve several

deterrent functions—it can give potential alcoholics

an additional incentive to control their drinking,

and it may, even in the case of the chronic alcoholic,

strengthen his incentive to control the frequency and

location of his drinking experiences. [392 U.S. at

539, 88 S. Ct. at 2157.]

* * * * *

“Even the medical authorities stress the need for

continued experimentation with a variety of ap-

proaches. I cannot say that the States should be

totally barred from one avenue of experimentation,

the criminal process, in attempting to find a means

to cope with this difficult social problem. From what

I have been able to learn about the subject, it seems

to me that the present use of criminal sanctions

might possibly be unwise, but I am by no means

convinced that any use of criminal sanctions would

inevitably be unwise or, above all, that I am qualified

in this area to know what is legislatively wise and

what is legislatively unwise.” (392 U.S. at 539-40;

88 S. Ct. at 2158; emphasis in original. )

It is also interesting to note other language of Mr. Justice

BLACK in Powell v. Texas, supra. For instance, he also

went on to say:

“But even if we were to limit any holding in this

field to ‘compulsions’ that are ‘symptomatic’ of a

‘disease,’ in the words of the findings of the trial

court, the sweep of that holding would still be start-

ling. Such a ruling would make it clear beyond any

doubt that a narcotics addict could not be punished

for ‘being’ in possession of drugs or, for that matter,

for ‘being’ guilty of using them. A wide variety

of sex offenders would be immune from punishment

if they could show that their conduct was not volun-

tary but part of the pattern of a disease. More gen-

erally speaking, a form of the insanity defense

would be made a constitutional requirement

throughout the Nation, should the Court now hold

it cruel and unusual to punish a person afflicted with

any mental disease whenever his conduct was part

of the pattern of his disease and occasioned by a

compulsion symptomatic of the disease. Such a hold-

ing would appear to overrule Leland v. Oregon, 348

U.S. 790 (1952), where the majority opinion and

the dissenting opinion in which I joined both stressed

the indefensibility of imposing on the States any

particular test of criminal responsibility. Jd., at

800-801; id., at 803 (Frankfurter, J., dissenting).

“The impact of the holding urged upon us would,

of course, be greatest in those States which have

until now refused to accept any qualifications to the

‘right from wrong’ test of insanity; apparently at

least 30 States fall into this category. But even in

States which have recognized insanity defenses simi-

lar to the proposed new constitutional rule, or where

comparable defenses could be presented in terms of

the requirement of a guilty mind (mens rea), the

proposed new constitutional rule would be devastat-

ing, for constitutional questions would be raised by

every state effort to regulate the admissibility of evi-

dence relating to ‘disease’ and ‘compulsion,’ and by

every state attempt to explain these concepts in in-

structions to the jury. The test urged would make

it necessary to determine, not only what constitutes

a ‘disease,’ but also what is the ‘pattern’ of the

disease, what ‘conditions’ are ‘part’ of the pattern,

what parts of this pattern result from a ‘compul-

sion,’ and finally which of these compulsions are

‘symptomatic’ of the disease. The resulting confusion

and uncertainty could easily surpass that experi-

enced by the District of Columbia Circuit in at-

tempting to give content to its similar, though some-

what less complicated. test of insanity [footnote

omitted]. The range of problems created would seem

totally beyond our capacity to settle at all, much less

to settle wisely, and even the attempt to define these

terms and thus to impose constitutional and doc-

trinal rigidity seems absurd in an area where our

understanding is even today so incomplete.” (392

U.S. at 545-46, 88 S. Ct. at 2160-61; emphasis

supplied. )

Judge Jasen, in the opinion of the New York Court of

Appeals below, Chief Judge Fuld taking no part, emphasizes

the “utility of ... [criminal] penalties to law enforcement,”

and points out that “strong reasons of public policy militate

against any such recognition [of the drug-dependence de-

fense] by this court” (Petition, Appendix A, pp. A-8 to

A-9). He also stresses that “[rJeasons of policy and power

. . . dictate that we move with caution and restraint in

adjudicating defendant's claim of cruel and unusual! punish-

ment with its attendant logical implications for a con-

Stitutionality required minimum standard for criminal

responsibility” (Petition, Appendix A, p. A-8). Further

liberalization of this State’s criminal-accountability statute

—

tn eet Oe a ee ee

for mere addiction would be an unwise approach in an area

so geographically beset with problems as is drug abuse.

The New York State Legislature has only recently enacted

new legislation in the field of Drug Abuse and Narcotic

Addiction (Article 81 of the Revised Mental Hygiene Law,

L. 1972, c. 251, eff. Jan. 1, 1973), after lengthy and

deliberate study of the pros and cons regarding the feasi-

bility of such enactment, so that no argument can now

validly be urged that there is extant antiquated legislation

which requires new consideration and updating in our

changing society.

To immunize a person who “cops out” from the realities

of life without a showing that his mental capacity was so

impaired as to destroy the voluntary nature of his act,

would be to derogate accepted legal concepts regarding

criminal responsibility. In People v. Trapp, 20 N Y 2d 613,

233 N.E.2d 110 (1967), it was stated as follows:

“ —_ Doubtless at times compliance with the law

results in personal inconvenience and hardship; yet,

whatever bearing this may have on the nature of the

punishment, it can have no bearing on the power of

the Legislature to define criminal responsibility.

(See, e.g., People v. Borrero, 19 N Y¥ 2d 332.)” (20

N Y 2d at 617, 233 N. E. 2d at 112-13.)

This “personal inconvenience and hardship” which results

from the requirement that a drug addict comply with the

law interdicting the illicit possession of narcotics and

narcotic paraphernalia, while addicted to a most dan-

gerous habit, is not sufficient for the trier of the facts

upon which to predicate any valid determination which

would excuse the addict for the commission of those crimes

or of any crime (induced by his need for narcotics) for

which he is arrested, if his addiction fails to reach the level

of mental incompetency required by Section 30.05 of the

New York Penal Law, supra. And this is so although the

crime may either involve the contraband which is neces-

sarily required to feed his habit, or the wrongful acquisi-

tion of the wherewithal which will subsequently be needed

for the purchase of the forbidden fruit. The trier of the

facts cannot be left to conjecture, and as so eloquently

advanced by the trial judge below: “Any speculation in-

dulged by the court in the area of possible mental incapac-

ity on the part of a defendant who forswears all claim to

insanity as a defense, would breach the permissible limits

of the inferential process and build an inference upon an

inference, a hornbook tabu” (Petition, Appendix C, p.

C-13).

In fine, it is respectfully urged that this Court should

deny the petitioner’s application for a writ of certiorari

upon the ground that the issue is moot (ARGUMENT A,

supra), and upon the further ground (ARGUMENT B,

supra) that the claim advanced by the petitioner is legally

unsound and will only inevitably open the door to the

presentation of a myriad of related contentions in the drug-

abuse area, as well as in the more remote spheres of “com-

pulsions” not, in and of themselves, protected beneath the

panoply of New York’s present liberal and equitably con-

stituted statute regarding criminal responsibility. By seek-

ing such absolution in the eyes of the criminal law, there

will be, in effect, a serious challenge to this State’s obliga-

tion to safeguard public policy requirements.

CONCLUSION

The petition for the writ of certiorari should be

denied.

Dated: Brooklyn, New York

March, 1974

Respectfully submitted,

EUGENE GOLD

District Attorney

Kings County

Brooklyn, New York 11201

Attorney for Respondent

HARRY BRODBAR

Assistant District Attorney

of Counsel

APPENDIX

a PSNR SLID BATE “ —— ten

APPENDIX A

Excerpts from Rosenblatt, New York’s New Drug

Laws and Sentencing Statutes, Law Journal Press,

N. Y., pp. 104-07, with comments by the author of this

brief.

“SECTION 56.

ELEVATING THE DEGREE OF CRIME BY VIRTUE OF PRIOR

CONVICTION: APPLICATION TO CRIMES COMMITTED

PRIOR TO THE ENACTMENT OF THE STATUTE

As we have seen, there are several situations in which

previous convictions will serve to elevate the degree of a

controlled substance crime.

(a) By virtue of PL 220.12, fifth degree posses-

sion (C felony) under PL 220.09(1)-(9) is elevated

to fourth degree possession (B felony) upon a pre-

vious conviction under PL 220.09(1)-(9). See Sec.

51 supra.

(b) By virtue of PL 220.37, a fifth degree sale

(C felony) under PL 220.34(1)(a) or (b) is ele-

vated to fourth degree sale (B felony) upon a pre-

vious conviction under PL 220.34(1) (a) or (b). See

Sec. 52 supra.

(ec) By virtue of PL 220.34(2), any sixth degree

sale (D felony) is elevated to fifth degree sale (C

felony) upon a previous conviction for any sixth

degree sale. See Sec. 54 supra.

(d) The sale of any amount of hallucinogen, hal-

lucinogenic substance, stimulant, or LSD (PL

220.31), a class D felony, is, under PL 220.39(2)

elevated to third degree sale (Class AIII felony)

upon any previous article 220 conviction, or at-

tempts or conspiracies thereof. See Sec. 53 supra.

2 EOIN Abe nerd n Se ee ae

Appendix A

(e) Possession with intent to sell any amount of

hallucinogen, hallucinogenic substance, stimulant, or

LSD, ordinarily a class D felony, is, by virtue of

PL 220.16(2), a class AIII felony, if preceded by

an article 220 conviction or conspiracy or attempt

thereof. See Sec. 55 supra.

There is also the matter of augmented sentences upon

predicate felony convictions. All of these issues involve

varying principles of law relative to prospective or retro-

active application.

In the case of category (a) above, the enlargement of

criminal responsibility is specifically made to depend on the

previous commission of designated crimes. For example, a

PL 220.09 did not exist prior to September 1, 1973, it is at

felony upon a previous violation of that section. Because

PL 220.09 did not exist prior to September 1, 1978, it is at

least arguable that the statute could not be invoked retro-

spectively. Suppose, for example, that in December of 1973

a defendant was arrested for possession of heroin, under

PL 220.09(1). His record disclosed a previous conviction,

in 1968, for felonious possession of heroin under former

PL 220.15(2) (b) (i). Even though the 1968 conviction

was for the very act now condemned under PL 220.09(1),

his previous conviction was not under that section, but

under a statute, since repealed,* which proscribed the

identical conduct. The Court of Appeals has displayed a

* [Footnote not in original.] It must be emphasized that in the

case at bar, the petitioner had been convicted of Criminal possession

of a dangerous drug in the sixth degree (former Section 220.05 of

New York’s Penal Law, also since repealed by New York Session

Laws 1973, Chapter 276, Section 18, effective September 1, 1973).

TRS

Race BES De RE LS

Appendix A

strong proclivity for giving recidivist statutes the narrowest

reading possible [e.g. People ex rel. Newman Vv. Foster,

297 N.Y. 27 (1947) ; People v. Shaw, 1 N.Y.2d 30 (1956) J,

and if the application of that doctrine persists, PL 220.12

may prove inoperable in case of convictions rendered under

precursor statutes to PL 220.09(1)-(9). [Immediately

preceding emphasis not in original. ]

In the case of PL 220.37, predicates count only if they

involve violations of PL 220.34(1) (a), to wit, selling a

narcotic preparation; or of PL 220.34(1) (b), to wit, sell-

ing more than ten ounces of a dangerous depressant or two

pounds or more of a depressant. Here the application of the

Statute to convictions rendered under precursor statutes

is further confounded by the fact that narcotic preparations

were not so designated prior to September 1, 1973, even

though the substances now called narcotic preparations

were declared illicit, and even though they were known as

narcotic drugs [former PL 220.00(4), L.1972, ch. 878,

see schedule III(b) and IIIc) of former Penal Law Sec.

220.02], which correspond exactly to Schedule III‘b) and

III(c) under present Public Health Law Sec. 3306. Jn the

case of narcotic preparations, therefore, there are tivo pos-

sible barriers to the applicability of PL 220.37; the first

numerical, and the second terminolegical. {Emphasis not

in original. ]

Under paragraph (c) above, PL 220.34(2) is described

as elevating sixth degree controlled substances sales to fifth

degree sales, when they are preceded by sixth degree sale

convictions. If, for example, a defendant is convicted on

August 30, 1973 under former PL 220.30 (L. 1969, ch.

RRO re Su eee ee

Appendix A

787) for selling LSD, a class D felony, and is then arrested

on September 10, 1973 for selling LSD in violation of PL

220.31, an issue would arise whether the 1973 sale would

invoke the terms of PL 220.34(2), rendering it a class C

rather than class D felony. The defendant would point out

that the crime is elevated only if he has “been previously

convicted of criminal sale of a controlled substance in the

sixth degree” and that his August 30, 1973 conviction was

for a crime that would now be a sixth degree sale, but was

then fourth degree sale of a dangerous drug. [Emphasis

not in original. }

In paragraph (d), the operability of PL section 220.39

(2) is not written in new terminology where previous con-

victions are concerned. The statute (L. 1978, ch. 1051, Sec.

14) renders the sale of enumerated controlled substances a

class AIII felony when the defendant “has previously been

convicted of an offense defined in Article 220 or the attempt

or conspiracy to commit any such offense.” Here the lan-

guage is decidedly different from that used in the previous

case. If the LSD defendant under PL 220.34 (2) is success-

ful in arguing that the statute does not apply because it de-

fines a “new” crime, the same argument would lead to the

opposite conclusion in the case of PL 220.39 (2). There the

legislature refrained from defining the predicates as “con-

trolled substance” crimes under new sections, but instead

referred to an Article 220 which has been with us since

1967. It would seem likely, then, that PL Section 220.39 (2)

would become operative in any case where the defendant

had any article 220 conviction covering the period from the

inception of the revised Penal Law, on September 1, 1967,

Appendix A

forward. To apply the statute to the same violations when

committed as old Penal Law 1751 et seg. crimes, would be

to stretch it beyond its intended scope.”

COMMENTS BY THE AUTHOR OF THIS BRIEF

Since one of the crimes for which the petitioner was con-

victed, Criminal possession of a dangerous drug in the

sixth degree (former Section 220.05 of New York’s Penal

Law), was repealed, effective September 1, 1973, might it

not also be considered a stretching “beyond its intended

scope” if such crime were employed as a predicate for

raising the grade of a drug-related offense committed

after the effective date of new Article 220, and for which

a conviction followed?

Although the author of this brief concedes that three

statutes in the former Article 220 of New York’s Penal

Law have remained intact and were incorporated into the

newly enacted Article 220 (Section 220.45 [Criminally

possessing a hypodermic instrument], Section 220.50

[Criminally using drug paraphernalia in the second degree]

and Section 220.55 [Criminally using drug paraphernalia

in the first degree] ), one of which, the one concerned with

the hypodermic instrument, the petitioner also stands con-

victed, it is respectfully urged that such fact might not

legally bolster any contention that such prior conviction

would serve as a predicate in the event that the petitioner is

convicted in the future for violating either Section 220.16

(2) or Section 220.39(2) of New York’s Penal Law, so as

to overcome the strong presumption that a law is to have

prospective application only in the absence of a clearly

NAR IRE TIS NR aA aera + Pe ee eee

Appendix A

manifested legislative intent to the contrary. It might well

be deemed a strange interpretation indeed to apply the

petitioner’s two misdemeanors now before this Court, for

which convictions were found prior to September 1, 1973,

as predicates for elevating the degree of a drug-related

crime committed after that date, without the New York

Legislature also unequivocally intending to apply the same

theory of elevating the grade of the subsequent charge and

conviction of a related crime based upon more serious drug

felonies where convictions were also obtained at such prior

date. It has been demonstrated from the excerpts from Mr.

Rosenblatt’s book set forth in this Appendix, that doubts

do exist with regard to such prior felonies, thereby

bringing into prominence the strong presumption of pro-

spectiveness (see pp. 18-19, supra). That being so, it might

be considered by an appellate court in the future that

applying the two misdemeanors for which the petitioner

was convicted prior to September 1, 1973 as predicates for

raising the grade of the subsequent drug crime, would be

without any justifiable basis since there is nothing peculiar

about those crimes which should accord them any different

treatment from felonies. A more severe interpretation

with regard to prior misdemeanor convictions might not be

acceptable from an equitable point of view, a view which

would not denigrate the recent “hard-line” approach by the

New York State Legislature in its desirable quest to over-

come the serious drug problem, at the time of the enact-

ment of the new Article 220 of the Penal Law in 1973. Of

course, where the legislative intent is clear, as in the recidi-

yist sentencing provisions found in Section 70.06 of New

York’s Penal Law (second felony offender) and Section

Appendix A

70.10 of New York’s Penal Law (persistent felony of-

fender), with which we are not presently concerned, since

misdemeanors are involved, no doubts as to retroactivity

are present.

However, if any court having jurisdiction in New York

State were constrained to urge that a statute such as Sec-

tion 220.55 of New York’s Penal Law (Criminally using

drug paraphernalia in the first degree), which, like Sec-

tion 220.45 of New York’s Penal Law (Criminally posses-

sing a hypodermic instrument), existed prior to Septem-

ber 1, 1973, and was also incorporated into the newly en-

acted Article 220, could be construed from its language to

be applicable to a similar conviction arising prior to that

date, some logic might well be asserted for such a holding.

Section 220.55, supra, notwithstanding its misleading title,

was designed “to cope with the problems of proof which

result from raids on illicit drug ‘factories.’ Often such a

raid fails to turn up any narcotics either because the latest

batch was just processed and shipped out or because the

next batch has not yet arrived for processing. However,

from the equipment in the place it is obvious that narcotics

for eventual street sale are being processed there... [The

statute] makes criminal the knowing possession or sale of

certain ordinarily legitimate materials under the indicated

illegal circumstances” (Practice Commentary, Arnold

Hechtman, McKinney’s Consolidated Laws of New York

Annotated, Book 39, Penal Law, 1973-1974, Cumulative

Annual Pocket Part, at pp. 29-30). It is beyond cavil that

a crime such as expressed in this particular statute can be

categorized as anomalous in nature and sui generis since

ET RE ~ ee ee

et ee a

Appendix A

it differs from the classic sale or possession of narcotics,

so that any application of Section 220.55 of New York’s

Penal Law to a conviction under its companion statute,

Section 220.50 of the Penal Law, arising prior to Sep-

tember 1, 1973, might well be deemed to have no bearing

on the other sections within the new Article 220, and

without in any wise offending the presumption of

prospectiveness.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.