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UNITED STATES EX REL. MERCOGLIANO v. COUNTY COURT

June 7, 1976

UNITED STATES OF AMERICA ex rel. JOSEPH A. MERCOGLIANO, Petitioner,
v.
COUNTY COURT OF NASSAU COUNTY, Respondent



The opinion of the court was delivered by: PLATT

PLATT, D.J.

 PRELIMINARY STATEMENT

 New York's second felony offender statute (Penal Law § 70.06) provides that indeterminate sentences of specified maximum and minimum lengths must be imposed on offenders convicted of a felony for the second time. Until the statute was amended in 1975, the earlier "felony conviction" was defined to be a conviction in New York of a felony, *fn1" or a conviction in another jurisdiction of an offense for which a sentence of imprisonment of more than one year (or a sentence of death) was authorized, *fn2" provided that such earlier conviction, whether in New York or elsewhere, took place within the ten years prior to the second offense.

 Petitioner in this action was convicted on January 21, 1975, of Criminal Possession of a Controlled Substance in the Sixth Degree, a felony, upon a plea of guilty to the charge in the County Court of Nassau County. He was sentenced as a second felony offender to an indeterminate term of 1-1/2 to 3 years, the shortest term possible under Penal Law § 70.06(3)(d) and (4). The predicate felony conviction was a 1972 Texas conviction for possession of marijuana, for which petitioner could have been sentenced under Texas law to a term of more than one year. *fn3" Had petitioner been convicted in New York for possession of the same amount of marijuana, he would not be a second felony offender, for New York then did not, and does not now, provide that such possession constitutes a felony.

 Petitioner's argument in his petition for a writ of habeas corpus is that New York has denied him the equal protection of the laws by requiring that he be sentenced as a second felony offender. Another defendant, identical in every way with him except convicted in New York instead of in Texas of the earlier possession offense, would, petitioner suggests, be eligible for more lenient treatment. To consider possession a felony in his case simply because it did not occur in New York is, he claims, arbitrary and irrational.

 Thus the question for this Court is: was it a denial of equal protection for the State of New York to provide that felony offenders who had earlier been convicted in another jurisdiction for an offense for which more than one year's imprisonment could have been imposed by that jurisdiction should be treated more severely than felony offenders with a past conviction was for the same offense, but in New York, the offense being such that New York courts could not impose a one-year sentence. *fn4"

 DISCUSSION

 I

 Both parties appear to agree that this Court can declare that the second-felony provisions in effect in New York at the time of petitioner's plea of guilty deny equal protection only if they are arbitrary and unreasonable, and are not relevant to the object of the legislation. See Marshall v. United States, 414 U.S. 417, 422, 38 L. Ed. 2d 618, 94 S. Ct. 700 (1974); Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L. Ed. 989, 40 S. Ct. 560 (1920). Both sides also appear to agree that the legislative purpose of § 76.06 is to punish hardened criminals more severely than persons who have not committed felonies in the past. Neither side argues with the rationale for the statute; petitioner simply maintains that the test for determining which are the criminals more deserving of punishment is, in relevant part, irrational.

 The respondent, the County Court for the County of Nassau, argues that the test is rational. Respondent suggests that the test provides a simple and uniform criterion for determining which are the serious offenders, i.e., serious offenders are those who are twice convicted of offenses for which a serious penalty can be imposed by whatever jurisdiction has seen its laws broken. The statute was based on the recommendations of the Model Penal Code, the American Bar Association's Minimum Standards for Sentencing, and the New York State Commission on the Revision of the Penal Law.

 Respondent further argues that the Supreme Court has declared that the most objective criterion to determine the seriousness of an offense is the length of sentence, see Baldwin v. New York, 399 U.S. 66, 26 L. Ed. 2d 437, 90 S. Ct. 1886 (1970) (plurality opinion); Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968), and that it follows that the use of length of sentence in the test must be considered rational.

 Of course, it is also crucial that the respondent demonstrate that it is rational for the test to provide that the length of sentence where the offense takes place, rather than the length of sentence that would be applied in New York, should control. To illustrate with the facts before us, respondent's argument must be that it is rational to conclude that because Texas imposes harsher punishment on those who possess marijuana, those who possess marijuana in Texas are more serious offenders than those who possess marijuana in New York.

 We agree with respondent that this is a rational position for a legislature to take. We cannot say that it is irrational to consider that a Texas offender is a more serious offender, for the simple reason that he was told that Texas considers that his crime is serious, but he nevertheless committed that crime against the State of Texas. The Texas offender has in effect demonstrated that he is not concerned about behaving in accordance with the norms important to the society in which he is present, and that factor sets him apart from the possessor of marijuana in New York who has demonstrated no comparable lack of concern. This distinction is sufficient under the Equal Protection Clause of the Fourteenth Amendment to justify disparate treatment in sentencing.

 We note that this is hardly the only context in which deference may be paid to the standards of the community in which questionable activity takes place. In obscenity cases, for example, community standards determine what is, and what is not, protected under the First Amendment, see Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). Under the federal criminal statute which forbids use of the mails for shipment of obscene materials (18 U.S.C. § 1461), behavior can be judged under community standards, see Hamling v. United States, 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974), rather than under a uniform national standard. Just a few months ago the Court of Appeals for the Third Circuit upheld the use of state law to determine whether aliens have committed "adultery" for the purposes of 8 U.S.C. § 1101(f), Brea-Garcia v. Immigration and Naturalization Service, 531 F.2d 693, 44 USLW 2414 (3d Cir. 1976). Under the two federal statutes named, and also under 18 U.S.C. § 4251(f) (see discussion below), certain actions in one state may give rise to the imposition of ...


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