The PEOPLE of the State of New York

Gwivili CARTER, Defendant
Supreme Court, New York County, Part 49
80 Misc. 2d 1081 (1975)


 The defendant moves to dismiss the indictment against her claiming that the statutes upon which the charges are founded are unconstitutional.  Gwivili Carter is alleged to have sold over an ounce of a substance containing methadone to an undercover officer.  This alleged sale has given rise to the three charges contained in the indictment; [p. 1082] one count relates to the alleged sale and the others to the defendant's possession immediately prior to the sale.

 Count I charges the criminal sale of a controlled substance in the first degree (Penal Law, s 220.43) and requires proof that the defendant knowingly and unlawfully sold '. . . one or more preparations, compounds, mixtures or substances of an aggregate weight of one or more ounces containing a narcotic drug.'  This offense is a class A--I felony and upon conviction the court must impose a sentence of life imprisonment (Penal Law, s 70.00, subd. 2(a)) and fix a minimum period of imprisonment of not less than fifteen years nor more than twenty-five years (Penal Law, s 70.00, subd. 3(a)(i)).

 The second count charges criminal possession of a controlled substance in the second degree (Penal Law, s 220.18, subd. 1) and requires proof that the defendant unlawfully possessed 'one or more preparations, compounds, mixtures or substances of an aggregate weight of one ounce or more containing a narcotic drug.'  Upon conviction, the defendant must be sentenced to life imprisonment with a minimum period of incarceration, fixed by the sentencing court, of not less than six years nor more than eight years and four months (Penal Law, s 70.00, subd. 3(a)(ii)).

 Count III charges the defendant with the class A--III felony of criminal possession of a controlled substance in the third degree (Penal Law, s 220.16, subd. 1) and requires proof that the defendant possessed any quantity of narcotic drug with intent to sell it.  Upon conviction, the court must impose a life sentence and fix a minimum period of imprisonment of not less than one nor more than eight years four months (Penal Law, s 70.00, subd. 3(a)(iii)).

 . . . [I]t is contended that the use of the aggregate weight criteria in the first degree sale and second degree possession counts, as applied to diluted methadone, violates the due process and equal protection clauses of the state and federal constitutions . . . .

[p. 1083] The Aggregate Weight Claim

 The thrust of the defendant's claim with respect to the use of the 'aggregate weight' of the substance possessed and sold as the basis for determining the degree of offense charged in the first and second counts is that it creates irrational distinctions between similar kinds of conduct and imposes unequal punishments upon offenders who have committed virtually identical illegal acts.

 At this state, it is undisputed that the defendant possessed and sold over an ounce of a mixture containing 30 milligrams of methadone in solution with over one ounce of an orange juice preparation.  The defendant contends that it is unconstitutional to hold her criminally liable for the possession and sale of more than one ounce where the total controlled substance present constitutes approximately one-tenth of one percent of the aggregate weight of the total mixture or solution.[n. 1]

1. It should be noted that the percentage (0.1%) is based upon defendant's assumption that the one ounce alleged in the indictment is one ounce (or 28,350 mg.) avoirdupois weight.  However, it is clear that the proof must establish one Fluid ounce, a measure of volume rather than the  avoirdupois ounce which is a measure of weight.  (See, Penal Law, s 220.00, subd. 3).  Technically then, the challenge here is to the use of the aggregate volume of the material sold or possessed rather than its aggregate weight.  None of the legal principles involved are affected by this; however, the percentage of methadone (by weight or volume) would, in a non-significant way, vary from the 0.1% Alleged by counsel.
 Before proceeding to the merits of defendant's contention, it might be helpful to trace the development of New York's policy of basing the degree of offense upon a scale of increasing aggregate weights (or volume) of contraband substance sold or possessed.

 Prior to 1950, the sale of any quantity of narcotic drug was treated as a felony and carried a sentence of up to ten years imprisonment.  All possessory offenses, regardless of the quantity involved, were misdemeanors, subject to a maximum sentence of one year (Penal Law of 1909, s 1751; L.1929, c. 377; L.1933, c. 684).

 In 1950, section 1751 was amended to create the additional felony of possession with intent to sell and provided for the same ten year maximum sentence as an actual sale.  Built into this offense was a statutory, rebuttable presumption of intent to sell flowing from the possession of two or more ounces of heroin, cocaine or morphine of at least three per cent purity or sixteen ounces [p. 1084] of cannabis or other narcotic.  (L.1950, c. 346).[n. 2] In 1951, the penalty for sale and possession with intent to sell was raised to fifteen years and mandatory minima sentences of two years were added to both offenses (L.1951, c. 529).  The same Legislature, by Chapter 530, also created a new felony offense based upon the possession of an aggregate weight of more than one-quarter ounce of heroin, morphine or cocaine or more than one ounce of opium or other narcotic.  Conviction under the offense carried a mandatory minimum sentence of two years imprisonment and a permissible maximum of ten years (Penal Law of 1909, s 1751(3); L.1951, c. 530).  The following year, subdivision 2 of section 1751 was amended to reduce the quantity of possessed narcotics necessary to trigger the presumption of intent to sell and reduced the purity requirement for heroin, morphine and cocaine from 3% To 1% (L.1952, c. 414).  In 1956, the penalties were again increased and the aggregate quantities of drug necessary to sustain a charge of felonious possession or to raise the presumption of intent to sell were reduced.  Later, the Legislature eliminated the requirement that had applied only to the intent-to-sell presumption with respect to heroin, morphine and cocaine, that the aggregate weight contain at least 1% Of the prohibited substance.  (L.1965, c. 1030).

2. This amendment, establishing what appears to be the first weight- related drug offense in the United States, had been proposed by the New  York County District Attorney's Office.  The memorandum in support of the change submitted by District Attorney Hogan, after noting the arbitrariness of treating as misdemeanors the possession of large quantities of narcotic drugs, urges the presumption of intent to sell based upon the possession of '. . . a quantity of narcotic drugs so large as to materially exceed the amount at all likely to be possessed by a drug addict . . .'  Quoted in N.Y. State Legislative Document (1970), No. 8, p. 41.
Subsequent amendments, as indicated in the text, not only lowered the weights originally used to create the presumption of intent to sell, but also created independent possessory felonies based solely on weight.
 The Revised Penal Law of 1967 eliminated the weight-presumptions from the possession-with-intent-to-sell offense and contained no weight-predicated sale offense.  Bare possession of more than one-eighth ounce (aggregate) of heroin, morphine or cocaine was made a class D felony (former section 220.15) and more than one ounce (aggregate) of cannabis, morphine, heroin or cocaine was made a class C felony (former section 220.20).

 In 1969, the Revised Penal Law was amended to create class A and class B felonies based on the sale or possession of [p. 1085] aggregate weights of more than 16 or 8 ounces of heroin, morphine or cocaine (L.1969, cc. 787, 788). Except for marihuana, no other drug was subject to a sale or possession offense based on weight.

 Major revision of the penal law provisions with respect to all drugs was proposed by The Temporary State Commission to Evaluate the Drug Laws, a Commission established by the Legislature and charged with the responsibility for recommending changes in law (L.1970, c. 474, as amended).  The Commission's proposals with respect to recodification of the public health law with conforming changes in the penal law were enacted in 1972 (L.1972, c. 878). Although the Commission proposals with respect to substantive changes in the penalty provisions were rejected by the Legislature (S. 9787, A. 11638/1972), the recommendations contained in the Commission's Interim Report (N.Y. State Legislative Document (1972), No. 10) provided the conceptual format for the vastly increased penalties enacted during the 1973 Session of the Legislature. Under the laws enacted in 1973, the offenses with which Miss Carter is charged were made class A felonies, whereas previously the highest charge would have been a class C felony.

 To some extent the challenge to the use of the aggregate weight or volume of the narcotic And the non-narcotic diluent is similar to that made in People v. Daneff, 30 N.Y.2d 793, 334 N.Y.S.2d 897, 286 N.E.2d 273, remittitur amended 31 N.Y.2d 667, 336 N.Y.S.2d 903, 288 N.E.2d 805 (1972), cert. denied, 410 U.S. 913, 93 S.Ct. 977, 35 L.Ed.2d 276 (1973).  (See, U.S. ex rel. Daneff v. Henderson, 501 F.2d 1180 (2d Cir., 1974).) In Daneff, it was claimed, as here, that the statutory scheme created unequal and irrational treatment of offenders by not distinguishing between possessors of like aggregate quantities of drug, where one possession might be of a relatively pure drug and the other possession could be of a far less concentrated substance.[n. 3]  However, this problem had not been overlooked by those involved in the enactment of the aggregate-weight based offenses.  In District Attorney Hogan's memorandum (Supra, note 2) supporting the first New York law making use of aggregate weights, he states:

3.  Neither this case nor Daneff present a situation where the quantity of drug is so diluted with a non-narcotic agent that the aggregate substance may lose its character as a narcotic.
'Illicit narcotics are usually impure.  The preparations or compounds range from a very high to a very low narcotic content.  The one-ounce quantity referred to above Contemplates the lowest narcotic [p. 1086] content likely to be found in the field of illicit drugs.'  (emphasis added)
 Twenty years later the Temporary State Drug Commission's report (supra, at p. 60) again specifically deals with this problem:
'Under existing law, whenever an offense is predicated upon possession or sale of a specific weight of dangerous drug, the weight is determined by the Aggregate weight of any mixture or compound which contains the particular dangerous drug.  Thus, for example, possession of sixteen ounces of a mixture containing both heroin and quinine is a class A felony under existing Penal Law s 220.44 regardless of whether the heroin itself forms 5% Or 50% Of the aggregate mixture.  . . .  There is a Superficial inequity in this.  However, even at 5%, (a percentage which is virtually non-existent at the 16 ounce weight), this quantity of drug is indicative of major dealership.'  (emphasis in the original)
 The Commission report then discusses (at pp. 61--68, 87) various criteria for determining weight (or volume) related penalties, giving particular significance to the number of doses a particular quantity of drug would generate in the illicit market.  Relating the doses to weight, as found by the legislative commission and interpolating the number of doses into the 1973 possessory offense under which the defendant is charged, we see that the Other drugs listed in the possession in the second degree statute (P.L. s 220.18) are all of quantities reflecting a substantial number of doses both in aggregate and pure weights.  (e.g. heroin--over 400 doses; methamphetamine--100 to 500 doses; stimulants (amphetamines)--600 doses (at 15 mg. per dosage unit--as in benzedrine spansules); L.S.D.--800 doses; cocaine--over 300 doses).

 Why then is Miss Carter's possession and sale of one therapeutic dose of methadone treated as a first degree sale and second degree possession when the specified quantities of other drugs which give rise to charges in those degrees are quantities which provide many hundreds of doses?

 It appears that when the draftsmen of the 1973 amendments moved methadone into the A felony category, they were following the recommendations previously made by the Temporary State Drug Commission which had urged that All narcotics be made subject to the A and B felony aggregate weight provisions then existing for heroin, morphine and cocaine.  N.Y. State Legislative Document (1972) No. 10, p. 67.  The Commission based the recommendation upon its finding that possession of these higher weights of methadone and other narcotics, [p. 1087] such as Demerol or dilaudid was indicative of major dealership.  This finding related to methadone as it was Then dispensed for out-patient use by the state-sponsored clinics in New York.  At that time, however, methadone was Not dispensed or prescribed for out-of-clinic consumption in a liquid formulation.  Indeed, it was not until several months After the passage of the challenged statutes that methadone began to be distributed in New York in liquid form.

 The defendant has submitted the affidavit of Dr. Robert Newman, an Assistant Commissioner in the New York City Department of Health, and Director of the New York Methadone Maintenance Treatment Program since 1970.  The People have conceded Dr. Newman's expertise.  Dr. Newman states, and the Court finds: that during 1972, governmental operated clinics and most private clinics were dispensing methadone for out-patient use in solid tablet form (called 'diskets'); that on December 15, 1972, there was published in the Federal Register (vol. 37, no. 242) a proposed regulation of the Federal Food and Drug Administration, effective March 15, 1973, requiring that methadone be dispensed in a liquid formulation (37 F.Reg. 26,801); that after publication, largely because of objections made by Dr. Newman's agency, the F.D.A. considered requests to withdraw the requirements of dilution of dispensed methadone and considered requests to grant New York an exemption from the requirement.  It was not until July 6, 1973 that these requests were formally rejected by the F.D.A. and another several months before the drug programs were able to comply with the direction to dispense take-home doses of methadone in liquid solution.

 All of these factors, together with the absence of any specific reference to methadone weights in the available debates, reports and memoranda connected with the enactment in the Spring of 1973 of the challenged statutes points clearly to the conclusion that methadone was included in the aggregate weight-based first and second degree offenses because of a lack of awareness of the then pending change in the method of dispensing the drug.

 This conclusion may explain why Miss Carter's possession and sale are treated as A--II and A--I felonies under the statutes.  However, it does not directly affect the legal principles applicable to her constitutional challenge.  What the Legislature may have known, or be presumed to have known, [p. 1088] when passing a law certainly is relevant to the resolution of ambiguities or problems in the construction of a statute.  It is not directly relevant to the question of whether there is a rational basis for the classification drawn by the Legislature.  Whether there is a rational basis must be decided on the facts as they are, not as they may have been or were thought to be.  (Municipal Gas Co. v. Public Service Comm., 225 N.Y. 89, 95--96, 121 N.E. 772, 774 (1919)).

 I can conceive of no rational basis for a law which treats 30 milligrams of therapeutic methadone (plus a few grains of filler and binder) to which a clinic employee has added an ounce or so of liquid, with the same degree of criminality and sanction as the same weight of more potent, illicit narcotics possessed or sold in dosage quantities at least one hundred times as great.

 Insofar as Penal Law, ss 220.43 and 220.18, subd. 1 treat the sale and possession of methadone in an aggregate weight of one ounce or more as class A--I and A--II felonies, respectively, the statutes are unconstitutional and violative of the due process and equal protection clauses in the New York and United States Constitutions.  Therefore, the defendant's motion to dismiss the first and second counts of the indictment is granted.  (CPL s 210.20, subd. 1 (h)).

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