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May 21, 1980


The opinion of the court was delivered by: COOPER

This plea for reduction of sentence has induced us to comment at length, having given close scrutiny to every detail in the case from its inception up to and including the sentence of three years imprisonment we imposed on December 6, 1979 after the defendant entered a plea of guilty to a felony charge that he and his two co-defendants "(o)n or about the 24th day of May, 1979, in the Southern District of New York, . . . unlawfully, intentionally and knowingly did distribute and possess with intent to distribute a Schedule II narcotic drug controlled substance, to wit 134 grams (net weight) of cocaine and dilutants. (Title 21 United States Code, Sections 812, 841(a)(1), 841(b) (1)(a) (sic) and Title 18, United States Code, Section 2.)"

We have refrained from making a full disclosure here of the defendant's activities since he attained maturity (he is presently 39 years old), because we are resolved not to inflict additional harm on his family and friends a result that would be bound to ensue inasmuch as this opinion must be officially filed, thereby becoming a public document. Suffice it to say that the defendant has been, so far in his life, the beneficiary of extraordinary good fortune. He was reared by parents highly regarded in the community and distinguished in their vital professional field; he has siblings who have given a good account of themselves; and influential friends who trusted and encouraged him along the way.

While the defendant has no prior criminal record, a study of his deportment over the past decade alone reveals a person long engaged in activities not in the least to his credit. These he kept hidden behind a good mind, a pleasing personality and an ability to perform creditably in his undertakings above the normal. In point is the estimate of his attorney: "(The defendant has) an ingratiating and caring personality, (he) never had difficulty in winning over people. He is kind, considerate and charming. But that is only the exterior. Within him is an insecure individual . . . . Uncertain he could actually succeed he took the easy way out by finding ways, even subconsciously, not to follow through." Affidavit of Irving Cohen, Esq., verified March 27, 1980, at 2-3 (hereinafter cited as Cohen affidavit).

 Our desire not to inflict further travail upon defendant prompts us to avoid certain details which affect our decision on his motion for reduction of sentence. However, we are compelled to indicate certain factors brought to our attention which we cannot minimize or disregard. He and his counsel know to what we refer when we indicate our consideration of the circumstances surrounding his arrests in 1969 and 1972, the criminal charges in each of which were subsequently dismissed; his statement to the United States Customs Agents in 1969; the resulting episode with the New York City police department in 1973; the subsequent outcome of his employment by an important governmental agency of New York City; his failure to reveal his attendance at educational institutions outside of this State, when disclosure would have been proper; his "approach" after arrest to one of his co-defendants who planned cooperation with the Government in the present case; his efforts to obtain payment from a co-defendant for the cocaine seized prior to completion of the second drug transaction; his explanation of the $ 2,280 in cash on his person at the time of his arrest; his admission that he supplied the seized four ounces of cocaine "merely acting as a middleman" and his explanation as to the ultimate recipient of that cocaine. None of these items are even mentioned in the papers before us on the present application.

 Our complete examination prompts us to regard as justified the final estimate of defendant by the United States Probation Officer after the completion of his investigation of the defendant: "(H)e impresses as an intelligent, articulate individual who attempted to appear cooperative although he omitted some relevant information, was reticent about providing some more and was misleading in other areas."

 Defense counsel appears to take the position that the absence of a prior criminal record, true as to this defendant, is an open sesame to a lenient sentence; as if deficiencies of moral character reveal themselves only through the vehicle of a prior criminal record. We have with great frequency "taken a chance" on defendants who had a prior criminal record (sometimes quite extensive) where the life history of the offender demonstrated positive strength on which we could rely; seldom have they "let us down." In fact, their rehabilitation often is most encouraging, at times exciting. Indeed, we do believe (along with movant's counsel) in "the possibility that human beings . . . can change." Cohen Affidavit at 8.

 This court has had more than a nodding acquaintance with persons convicted of crime (whether by plea or verdict), the effects of different types of sentences imposed, the utilization of concepts of rehabilitation, etc., etc. *fn1" During four decades of judicial service, we have tirelessly fought for the application of extreme care and sensitive understanding to each sentence imposed. It must be recognized that

Much harm is done by the myth that, merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine. . . . We are born with predispositions. . . . Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. . . . Impartiality is not gullibility. Disinterestedness does not mean child-like innocence.

 In re Linahan, Inc., 138 F.2d 650, 651-54 (2d Cir. 1943).

 We find further such comment in Skidmore v. Baltimore and O.R. Co., 167 F.2d 54, 63 (2d Cir. 1948):

(Lord Bramwell observed, "One third of a judge is a common law juror if you get beneath his ermine"; and Mr. Justice Riddell added that "the other two thirds may not be far different.")

 As we so often find true, a thorough inquiry into the character of a defendant without a prior criminal record proves most revealing and points the proper way at the time of sentence. The law endorses and encourages it. Under the much-cited United States Supreme Court case of Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949), the consideration of out-of-court information is deemed necessary to the sentencing process. To aid the judge in the exercise of this discretion, the judge is allowed "to consider information about the convicted person's past life, health, habits, conduct, and mental and moral propensities." (emphasis supplied) Id. at 245, 69 S. Ct. at 1082.

His (the judge's) task . . . is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant if not essential to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information ...

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