# Opposition Brief — Davis v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1974
- **Citation:** 416 U.S. 973

## Text

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
a
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

2.
3
:
J

ii

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

20
48

Al

26

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

26

19

15, 20

26

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,

Te

VORTMAN

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

iv
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
E
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

vi

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

’™
w

WILBERT DAVIS,

Petitioner,
—against—
THE STATE OF NEW YORK,
Respondent.

a
—

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.

3

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.

(c) ALBERTO AVELARES: Mr. Avaleres, an extra-
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-

10

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.

11

(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

13

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.

14

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
A.

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

30

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

31

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

82

..., 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 “?

33

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.

34

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

35

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

36

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

37

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).

38

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

39

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.”

40

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

41

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

42

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

43

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:

44

“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-

45

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

46

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

47

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.

48

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

A3
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

A4
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,

Ad
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

A6
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

A7
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

AS
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1753%3A1. Public record. Not legal advice.