author: Levine, J. Bellacosa, J.

text:
    [633 NE2d 1074, 611 NYS2d 470]
    The People of the State of New York, Appellant, v Angela C. Thompson, Respondent.
    Argued February 10, 1994;
    decided March 30, 1994

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donald J. Siewert and Mark Dwyer of counsel), for appellant.
    Thompson should be resentenced to 15 years to life imprisonment. (People v Broadie, 37 NY2d 100, 423 US 950; People v Jones, 39 NY2d 694; People v Barbara, 57 NY2d 727; People v Donovan, 59 NY2d 834; Carmona v Ward, 576 F2d 405, 439 US 1091; People v Scalza, 76 NY2d 604; Stanford v Kentucky, 492 US 361; People ex rel. Kemmler v Durston, 119 NY 569, affd sub nom. In re Kemmler, 136 US 436; Solem v Helm, 463 US 277.)

      Ronald R. Laskorski, Scarsdale, and Larry J. Sheehan for respondent.
    I. Appellant should be precluded from appealing respondent’s sentence. (People v Green, 139 AD2d 760; Trap v Dulles, 356 US 86; People v Davis, 33 NY2d 221.) II. The sentencing court acted properly in refusing to sentence respondent to 15 years to life imprisonment. (People v Broadie, 37 NY2d 100; People v Jones, 39 NY2d 694; United States v Lara, 905 F2d 599; People v Catalano, 101 Misc 2d 436; People v Askew, 93 Misc 2d 754; People v Rivera, 128 Misc 2d 593; People v Dowd, 140 AD2d 436; People v Robinson, 68 AD2d 413; People v Andrews, 176 AD2d 530, 79 NY2d 918; United States v Gonzalez, 945 F2d 525.)
   OPINION OF THE COURT

Levine, J.

Defendant was indicted and convicted after trial of the sale of two ounces, 33 grains of cocaine (a class A-I felony) to an undercover police officer on August 31, 1988. The trial testimony established that, in a known drug location, defendant sold the undercover officer 214 vials of cocaine for $2,000 and promised to "take care of’ him "the next time” he came. At the time of the sale she was 17 years old. Conviction of a class A-I felony carries a mandatory indeterminate prison sentence, the minimum of which is not less than 15 years and not more than 25 years, the maximum of which is life imprisonment (Penal Law § 70.00 [2] [a]; [3] [a] [i]). The trial court, however, determined that in defendant’s case, imposing even the minimum mandatory sentence of 15 years to life would constitute cruel and unusual punishment (US Const 8th Amend; NY Const, art I, § 5). The court, therefore, imposed an indeterminate sentence of eight years to life imprisonment. A divided Appellate Division affirmed (190 AD2d 162), the dissenters voting to reverse the sentence and remand the case to Supreme Court for resentencing in compliance with the Penal Law’s mandatory sentencing provisions for an A-I felony conviction. A Justice of the Appellate Division granted the People’s application for leave to appeal, and we now reverse.

In People v Broadie (37 NY2d 100, cert denied 423 US 950), this Court in an opinion by Chief Judge Breitel, albeit not without doubts expressed regarding the wisdom of the severity of the sentencing scheme for drug offenses enacted in 1973 (L 1973, ohs 276-278), upheld the facial and as applied validity of the mandatory maximum life imprisonment sentence and various mandatory minimum prison sentences in that legislation as against challenges under the cruel and unusual punishment prohibitions of the State and Federal Constitutions. In Broadie, this Court adopted the principle that a sentence may constitute cruel and unusual punishment by being " 'cruelly’ excessive, that is, grossly disproportionate to the crime for which [it is] exacted” (37 NY2d, at 125 [citations omitted]; see also, id., at 111). A majority of the Justices of the United States Supreme Court, in Harmelin v Michigan (501 US 957), reaffirmed the same principle, that gross disproportionality of a sentence of imprisonment violates the Eighth Amendment’s Cruel and Unusual Punishments Clause (id., 501 US, at 997-998 [Kennedy, J., concurring with O’Connor and Souter, JJ.]; id., 501 US, at 1013-1016 [White, J., dissenting with Blackmun and Stevens, JJ.]; see also, Solem v Helm, 463 US 277, 289-290; Weems v United States, 217 US 349, 377).

In assessing the proportionality of the mandatory sentences in People v Broadie, our analysis focused on the following factors: (1) the gravity of the offense, primarily in terms of the harm it causes society, but also in comparison with punishments imposed for other crimes in this State as well as with punishments for the same or similar crimes in other jurisdictions (supra, at 112, 115); and (2) "the character of the offender and the gravity of the threat he [or she] poses to society” (id., at 113; see also, Solem v Helm, 463 US, at 290-293, supra).

In People v Broadie, we found that "[m]easured thus by the harm it inflicts upon the addict, and, through him, upon society as a whole, drug dealing in its present epidemic proportions is a grave offense of high rank” (supra, at 113 [emphasis supplied]). Although the statutory sentencing scheme at the time equated the punishment level for drug dealing with that for the most heinous crimes of violence defined in the Penal Law, this Court found such severity not to be unreasonable because "drug-related crimes may be much more prevalent, that is, have a higher and rising incidence, than other crimes comparably punished or equally grave crimes not as severely punished, requiring greater isolation and deterrence” (id., at 116).

Turning in our constitutional analysis to the character of the eight defendants whose sentences were reviewed in People v Broadie, the Court recognized that, although not all of the defendants were "hardened” criminals, each was convicted of at least "street” sales or possession of large amounts of narcotics and none was what might be described as merely an "accidental” offender; therefore, we concluded that each could reasonably be considered a serious threat to society meriting severe punishment (id., at 113-114, 117). Accordingly, in Broadie, we found none of the sentences was grossly disproportionate to the crime committed, and concluded that the mandatory imprisonment provisions for drug-related crimes withstood both the facial and as applied challenges to their constitutionality. We nonetheless cautioned that, in the future, the mandatory drug sentencing laws might present "some rare case on its particular facts [where it could] be found that the statutes have been unconstitutionally applied” (id., at 119).

In People v Jones (39 NY2d 694), this Court was again called upon to determine whether the imposition of the mandatory maximum sentence of life imprisonment for a drug-related offense violated the constitutional prohibitions against cruel and unusual punishments. The defendant, a "millhand” in a large-scale heroin packaging and distribution operation, was arrested in a January 1970 raid and charged with joint possession (with 14 others) of over four pounds of heroin seized in the raid. She was offered (as were the other millhands) an opportunity to plead guilty to a lesser offense with a one-to-three-year sentence. She declined the offer and was found guilty after trial. A majority of this Court ruled that the mandatory sentence she received did not constitute cruel and unusual punishment. In so ruling, the majority rejected the dissent’s conclusion that the marked discrepancy between her sentence and the sentence meted out to the other millhands, who had accepted the prosecution’s plea proposal, constituted cruel and unusual punishment because it presented such a gross violation of the principle of equality of treatment for equally culpable offenders and had the effect of penalizing the defendant for exercising her right to a trial.

We last measured mandatory sentences for drug selling and possession against the constitutional proscriptions of cruel and unusual punishments in People v Donovan (59 NY2d 834, affg 89 AD2d 968). As disclosed in the dissenting memorandum of Presiding Justice Milton Mollen at the Appellate Division (89 AD2d, at 968-971, supra), the defendant was convicted of first degree criminal sale and first degree criminal possession of a controlled substance, in connection with the sale of just under four ounces of cocaine by her boyfriend, a narcotics dealer, to an undercover officer. Defendant’s involvement in the transaction was in procuring the drugs, apparently without personal profit, at her boyfriend’s behest (the presentence report stated that the offense was "out of character” for her). She rejected an offer of a one-to-three-year sentence in exchange for a plea to a lesser offense. Her conviction after trial resulted in the imposition of the minimum mandatory sentence, 15 years to life imprisonment, while her boyfriend, the principal actor in the transaction, received a sentence of lifetime probation for subsequently cooperating with the authorities. We again rejected the defendant’s cruel and unusual punishment claim (People v Donovan, 59 NY2d, at 836, supra).

Considered in light of the analysis developed in our own and Supreme Court precedents, we must conclude that the constitutional prohibitions against cruel and unusual punishments were not transgressed on the record and facts of this case. Manifestly, the Legislature may constitutionally define criminal punishments without giving the courts any sentencing discretion (Chapman v United States, 500 US 453, 466-467). Even the most severe mandatory sentences may be fixed for sale or even possession of quantities of cocaine so large as to support the inference that they were held for purposes of sale, because of the pernicious effect of drug trafficking on society (Harmelin v Michigan, 501 US 957, 1001-1003, supra). Thus, in Harmelin, the majority of the Supreme Court upheld a mandatory sentence of life imprisonment without parole for possession of over 650 grams of cocaine. Indeed, the most salient factor cited by the dissenting Justices in voting to overturn the mandated sentence was the absence of any possibility of parole for the lifetime of the offender, a result the dissenters found only permissible if the conduct was "so atrocious that society’s interest in deterrence and retribution wholly outweighs” all other penological considerations of individualized treatment in every case (id., 501 US, at 1028 [Stevens, J., dissenting]; see, 501 US, at 1022-1023 [White, J., dissenting]). By contrast, the sentence mandated here would authorize parole after service of the minimum term of imprisonment.

Considering the first element of the Broadie cruel and unusual punishments analysis, time has not eroded this Court’s conclusion in Broadie that the selling of narcotic drugs represents a grave offense of the first magnitude. Neither has it altered our conclusion on the second element, that, in comparison to the sanctions for other crimes under our Penal Law and for the same or similar drug offenses in other jurisdictions, the mandatory sentences for drug offenses are "relatively severe, but not irrationally so, given the epidemic dimensions of the problem” (People v Broadie, 37 NY2d 100, 117, supra).

To complete our analysis to determine whether defendant established the gross disproportionality of her punishment, we examine the extent of her culpability in this cocaine sale and the threat she poses to society (see, id., at 113; Solem v Helm, 463 US 277, 293, supra). The undisputed evidence in this regard is not overly favorable to defendant. The undercover officer testified at the trial without contradiction that defendant made a direct sale to him, filling his order for 200 vials of cocaine for a price of $2,000 and then knowledgeably haggled with him over the amount of the customary bonus of additional vials, insisting on giving him only 14 over his claim of entitlement to 20 extra vials, but promising to "take care of’ him personally "the next time” he came. Her conduct hardly bore the earmark of an "accidental” offender (People v Broadie, supra, at 113). As the Trial Judge noted at sentencing, defendant "understood fully well what she was involved in”. It is noteworthy in this respect that in Broadie, Chief Judge Breitel expressly held that "[n]one of the present cases involve what are often called 'accidental’ offenders * * * [because each of the eight defendants] was convicted of at least 'street’ sales of heroin or cocaine, or possession of a large amount of narcotics” (id., at 113). Undeniably here, the sale of 214 vials of cocaine for $2,000 was, at the very least, at one higher level of culpability (and risk to society) than the street sales in Broadie. Moreover, defendant’s election to personally sell a requested significant quantity of drugs at the wholesale level is to be completely contrasted with the conduct of the defendant in People v Jones (39 NY2d 694, supra). In Jones, the defendant was a "millhand” at the very lowest level of the heirarchy of the illegal drug enterprise, packaging the drugs. She was convicted of joint constructive possession of the four pounds of heroin found by the police at the premises during the raid. As a minor functionary in the enterprise, obviously the defendant in Jones had no actual control over the quantity of drugs that happened to be on the premises at any one time and, in that sense, Chief Judge Breitel in dissent could well characterize her as "perhaps an accidental” (id., at 701) offender as to the commission of a level of criminal possession of a dangerous drug dependent upon the quantity of the drugs possessed. In this case, despite the Trial Judge’s expressed certainty, based upon the evidence at trial, that defendant was in fact guilty as charged, defendant never accepted any personal responsibility for her criminal behavior nor expressed any remorse.

Moreover, we find no record support in the trial transcript or the presentence report of even a claim by defendant, much less evidence, that defendant’s criminal involvement was due to the domination of or coercion by her uncle, the principal in the drug operation in which defendant’s sale took place. Indeed, it was the conclusion of the probation officer who performed the presentence investigation that defendant’s involvement in the offense was motivated by a desire "to obtain personal profit”. That conclusion was derived in part from the officer’s interview with defendant, which was a good "vantage point to draw inferences, characterizations and interpretations from the record” (dissenting opn, at 491), particularly since defendant did not testify at the trial.

Nor does the punishment her uncle received establish gross disproportionality. He was indicted, inter alla, for five criminal sales of a controlled substance in the first degree, and pleaded guilty to one such sale in a plea bargain under which he was sentenced to 15 years to life imprisonment. While undoubtedly his far greater culpability merited substantially more punishment than defendant received, the comparative leniency in treatment of defendant’s uncle is significantly less than that objected to in People v Jones (supra) and People v Donovan (supra). And, even in those cases, the disparity in punishment was not sufficient to establish gross disproportionality.

Although defendant’s presentence report discloses mitigating factors in her family history, they do not demonstrate such an exceptional level of childhood deprivation that would significantly excuse her behavior. Defendant informed the probation officer who conducted the presentence investigation that "she received adequate supervision and that the quality of the home was decent” during most of her formative years when she was raised by a grandmother in Jamaica, British West Indies.

All of the foregoing factors militate against finding that defendant is the rare case we envisaged in Broadie that, on its particular facts, would present an exception to the general facial constitutionality of the Penal Law’s mandatory sentencing provisions for drug-related offenses. Indeed, based on our assessment of the gravity of the offense she committed and her personal culpability, we could only find defendant’s mandated sentence cruel and unusual punishment by concluding that the constitutional prohibitions prevented mandatory imprisonment for all offenders of defendant’s age. Yet the Legislature has consciously extended the A-I felony mandatory mínimums to youths in defendant’s age category (see, CPL 720.10 [2] [a]; see also, CPL 220.10 [5]; Schwartz, Preface to Chart V, NY Sentencing Charts 1994 Edition, Pamphlet to McKinney’s Cons Laws of NY, Book 39, Penal Law, at 18-19). The prevalence of the employment of adolescents to market illegal drugs is now well recognized (see, Letwin, Report From, the Front Line: The Bennett Plan, Street-Level Drug Enforcement in New York City and the Legalization Debate, 18 Hofstra L Rev 795, 813 [1990] [see, sources cited therein]). Thus, the Legislature could rationally determine that teenage drug dealers pose a serious threat to society. Clearly, defendant has not met her burden of showing any objective basis for us to conclude that contemporary standards of decency prevent imposing a sentence of 15 years to life imprisonment upon an older adolescent for a direct volitional sale of more than two ounces of cocaine for $2,000 (see, Stanford v Kentucky, 492 US 361, 380-382 [O’Connor, J., concurring], 383-384 [Brennan, J., dissenting]; Trop v Dulles, 356 US 86, 100-101; see also, Hutto v Davis, 454 US 370; Terrebonne v Butler, 848 F2d 500, cert denied 489 US 1020).

Before concluding this opinion, it is appropriate to address the principal arguments of the dissent urging affirmance. The dissent takes us to task for failing to set forth cruel and unusual punishments criteria for the guidance of sentencing and intermediate appellate courts, and for "overturning the opposite views of both prior courts, effectively rendering] a first instance judgment that an Eighth Amendment transgression and the Broadie rare case exception are not present.” (Dissenting opn, at 495.)

In reviewing the as applied constitutionality of the sentencing statute in this case, we considered the gravity of defendant’s crime, that is, the harm it causes society and its comparative seriousness in light of the punishments for other State crimes and for the same offense in other jurisdictions, as well as in comparison to the punishment of the other charged participant. We also reviewed defendant’s personal history and her role in the commission of this criminal offense, and found no strongly mitigating factors, other than her youth, which we determined was alone insufficient to establish gross disproportionality for constitutional purposes.

The foregoing factors were essentially those set forth by Chief Judge Breitel in People v Broadie (37 NY2d 100, 113, supra). They were also the same factors applied in Solem v Helm (463 US 277, 290-293, supra), the most recent case in which the Supreme Court struck down a mandatory sentencing law. And they were the factors applied in the proportionality analysis of the dissenters in Harmelin v Michigan (501 US 957, 1018-1027, supra [White, J., dissenting]), the most recent case in which the Supreme Court reviewed (and then uphéld) a mandatory sentencing scheme.

The Broadie-Solem analysis is designed to furnish an objective, principled basis for review of sentencing claimed to violate the cruel and unusual punishments clauses (see, Harmelin v Michigan, 501 US, at 1018-1021, supra [White, J., dissenting]). For the same reason, in Broadie, Chief Judge Breitel adopted that analysis in place of "a subjective evaluation which looks to the extent to which the conscience of the court is shocked by punishments imposed” (37 NY2d, at 111, supra [emphasis supplied]).

The Broadie-Solem criteria pay due deference to the preeminent role of the Legislature in choosing penological objectives. In Broadie, despite expressing policy misgivings, Chief Judge Breitel acknowledged that the Legislature could validly adopt deterrence — through wide severity of punishment — as the supervening objective in fashioning a statutory framework for drug crime control:

"Thus, to achieve the deterrence, so far seemingly elusive, the would-be drug trafficker had to be put on notice that, should he be caught, his fate was sealed regardless of his position in the heirarchy of distribution and regardless of the quantity of drugs in which he dealt” (id., at 115).

The dissent’s suggested alternative mode of cruel and unusual punishments review dispenses with comparative proportionality analysis as a principal means of insuring objectivity in deciding the constitutionality of sentences and restricting discretionary adjudication in this area. The dissent appears to limit the role of comparative proportionality assessment to determining "whether a sentence less than the most severe mandatory variety would deprecate the seriousness of the particular crime in general, in relation to other participants charged and uncharged, and in relation to other serious crimes of equal classification rank.” (Dissenting opn, at 497.) Apart from this nod to objective standards, the dissent’s approach would have the trial court in each case consider and weigh a lengthy list of particularized factors in a "nuanced” manner (dissenting opn, at 499) typically exercised by sentencing courts under individualized, indeterminate statutory sentencing regimes.

Undoubtedly, the dissent’s approach would enlarge the discretion of trial courts to determine that a mandated sentence in a given case was cruel and unusual punishment, based upon the sentencing court’s findings on the various particularized factors and its weighing of those factors. The dissent’s awareness of this likely effect is demonstrated in the candid statement that the suggested approach "focuses on the distribution of the power of sentencing adjudication” (dissenting opn, at 499). It, thus, impliedly rejects the proposition that indeterminate sentencing is not a constitutional imperative (see, Chapman v United States, 500 US 453, supra).

The weakening effect on the presumption of constitutionality of the dissent’s heavily discretionary system of determining challenges to the as applied constitutionality of the drug offense sentencing scheme will be far greater than is envisaged in the dissenting opinion. Inevitably, a system emphasizing the sentencing court’s findings and weighing of distinctive factors would lessen this Court’s role as the final, paramount arbiter of State constitutional issues. The dissenters’ readily understandable antipathy to the so-called "Rockefeller Drug Laws” should not becloud recognition that adoption of their proposed method of review would drastically change the role of this Court on challenges to the as applied constitutionality of legislation in general and even more radically alter the sound, principled cruel and unusual punishments jurisprudence which this Court has heretofore developed.

That is not to say that we disagree with the strongly held convictions of our dissenting colleagues and of the majority at the Appellate Division in the instant case (190 AD2d, at 166-167, supra) that the harsh mandatory treatment of drug offenders embodied in the 1973 legislation has failed to deter drug trafficking or control the epidemic of drug abuse in society, and has resulted in the incarceration of many offenders whose crimes arose out of their own addiction and for whom the cost of imprisonment would have been better spent on treatment and rehabilitation. The experience of the last two decades has clearly vindicated the doubts Chief Judge Breitel expressed in People v Broadie on the wisdom of the draconian drug sentencing laws. Nonetheless, even if the legislative choice was unwise, the central holding of Broadie still stands, namely, that the Legislature was not irrational in its view of the gravity of the offenses, the danger posed by the offenders and the penological purposes to be served and, therefore, the punishment imposed for defendant’s crime here "in the present state of [our] knowledge [was] not grossly disproportionate or cruel and unusual in the constitutional sense” (People v Broadie, supra, at 118-119). Reform of the penological policy choices in combatting the drug scourge lies with the legislative, not the judicial, branch (see, Rummel v Estelle, 445 US 263, 283-284; id., at 282-284, nn 27-29; People v Broadie, supra, at 117 ["That courts may believe that the Legislature is mistaken, does not lessen the legislative power”]).

Accordingly, the order of the Appellate Division should be reversed, and the matter remitted to Supreme Court, New York County, for resentencing in accordance with this opinion.

Bellacosa, J.

(dissenting). Judge Ciparick and I respectfully dissent and vote to affirm the order of the Appellate Division which upheld the sentence imposed on defendant by the trial court. By reversing the sentence, the Court of Appeals today compels the resentence of defendant to a mandatory minimum of 15 years to life imprisonment. The Court rules that this more severe sentence is required to effectuate the will of the Legislature, expressed more than 20 years ago as part of the frustratingly decried, yet intractably operative, Rockefeller Drug Sentencing Laws.

We agree with the courts below that this new fate visited upon Angela Thompson — a near doubling of her minimum sentence from 8 years to 15 years — is not jurisprudentially required. Indeed, when this Court facially upheld the constitutionality of this draconian sentencing scheme, it expressed the qualification that wise adjudication on an as-applied basis should deal with cases that crossed the line of cruel and unusual punishment, denominated genetically at that time as rare exceptions (see, People v Broadie [and seven other discrete cases], 37 NY2d 100, 119, cert denied 423 US 950; see also, People v Jones, 39 NY2d 694, 698 [Breitel, Ch. J., dissenting]; US Const 8th Amend; NY Const, art I, § 5).

The only issue before the Court, on the People’s appeal in this case, is whether sentencing this woman to less than the mandatory term of 15 years to life imprisonment is warranted. We conclude that the circumstances of this case support the prior courts’ rulings that the lesser period of incarceration is warranted because the mandatory sentence inflicts a grossly disproportionate penalty on defendant. This case falls within Broadie’s "rare case” exception, examined, understood and applied in the brighter light of contemporary standards, based on 20 years of experience and empirical data (see, Appendix). Our conclusion in no way condones or minimizes the volitional, personal responsibility of defendant for serious criminal conduct which, upon conviction, brought her, by the judgment of the sentencing court, a minimum of eight years actual imprisonment.

L

Each side in this case has argued vigorously and has added gloss, characterizations and inferences with respect to the facts. The essential and controlling features of this case, however, are essentially uncontroverted. Angela Thompson, a 17-year-old woman, was arrested in 1988 after making a single sale of cocaine to an undercover police officer at her uncle’s residence.

The presentence report shows that defendant grew up in a variety of places and under several different custodial arrangements. Her uncle, Norman Little, was running a major drug-selling operation in Harlem, and at some point he employed her in his illicit enterprise. Eventually, the uncle turned out to be Angela Thompson’s codefendant, though the police acknowledged that he was the principal target of their investigation and prosecution. In an effort to arrest the uncle and shut down this major drug operation, the police made four separate undercover drug purchases on four different days. Defendant had made one sale to an undercover officer of 214 vials of crack cocaine with a street value of $2,000. During the course of the sale, defendant’s uncle entered the room and stood between defendant and the undercover police officer for a short time. The weight was 2.13 grams over the two-ounce (56 grams) limit to qualify as a class A-I felony sale. A grain, which is the smallest unit in the system of weights used in the United States, weighs .0648 of a gram. The additional 33 grains in this case weighed 2.13 grams, which is less than one tenth of an ounce.

Following her arrest, defendant was charged with an A-I felony. The People offered her a plea bargain carrying a sentence of three years to life and, just before trial, four years to life, but she rejected both offers. She was on $1,000 bail until the trial and showed up for every court date. Having put the People to their proof at trial, she was convicted of the A-I felony.

Justice Bing Newton, the Trial Justice, heard all the evidence and saw all the necessary participants. She sentenced defendant to eight years to life and trenchantly commented:

"Notwithstanding the Legislative desire to create mandatory minimum sentencing guidelines for the State of New York, I think it’s still the law of this country that the punishment must fit the crime. * * * The question is whether or not the defendant is the type of person, by the facts presented in this case, such that, Constitutionally, this would be inappropriate, to serve 15 years to life. I know the defendant committed this crime when she was 17 years of age. * * * I will note that while defendant was found in the location at the time the search warrant was executed, that this indicates a single transgression of the law. * * * Her uncle, Norman Little, obviously is the person who put her in this position. * * * The problem with these [Broadie] guidelines are that they are not compelling and clear. So, the Court does not have a lot of guidance. * * * I conclude that the defendant, to be sentenced to 15 years to life, would be getting an unconstitutional sentence. * * * I make this determination * * * applying the Constitutional standards that are outlined in [Broadie] to this case, and therefore, [I] leavfe] it to the Appellate Court to * * * give guidance as to when it is appropriate to apply the [Broadie] case” (People v Thompson, Sup Ct, NY County, Dec. 11, 1989, Bing Newton, J., indictment No. 03994-89, Sentencing Minutes [emphasis added]).

On her appeal to the Appellate Division, defendant encountered the People’s cross appeal claiming that her sentence was illegal and too low on the minimum side. The prosecution’s strategy, however legally unassailable, is entitled to be viewed somewhat skeptically in view of the context of the lesser pretrial offers, the sentence it consented to for the uncle, and the initial failure to appeal the "illegality” of the sentence until defendant pursued her judgment appeal rights. Indeed, the prosecutor in oral argument of this case before this Court, with no basis in the record, declared that there is a "small group of judges applying their own black-robed predilections on this issue,” including, apparently, the Trial Justice and Associate Justices constituting the majority at the Appellate Division in this case. This disrespectful characterization should be rejected categorically because all the Justices and Judges in this case, and presumptively in all others, act out of a conscientious oath-driven duty to render justice ideally and in the given case to all sides equally.

The Appellate Division, in any event, rejected the People’s effort to ratchet defendant’s sentence up to 15 years to life, though it also ruled against her on her appeal. Justice Asch, for the Appellate Division majority, interpreted the record and arguments, adding this comment with respect to the sentence on this defendant, by then 22 years of age:

"A system of justice which mandates a 15-year prison sentence, as a minimum, on a 17-year-old girl, who was not cared for by parents and under the domination of her uncle * * * also mandates a lifetime of crime and imposes on the community, upon her release, a woman who may be incapable of anything but criminal activity. If we do not attempt to rehabilitate such young people, we condemn ourselves as well” (190 AD2d 162, 167 [Asch, J.] [emphasis added]).

The prior courts rightly considered Angela Thompson’s character and personal circumstances. We are convinced that they had the best vantage point to draw inferences, characterizations and interpretations from the record, a rather ordinary and traditional deference in such matters.

Notably, defendant’s uncle was arrested on 12 counts, including four separate sales on different dates. The People consented to his plea of guilty to one count of criminal sale of controlled substance in the first degree, with a sentence of 15 years to life. Defendant Thompson and at least one other similarly situated young woman (against whom charges were dismissed) were only coincidentally present at the time of the execution of the search warrant and caught in the net spread to catch Norman Little. Defendant’s conviction constitutes her entire criminal record and no other criminal activity appears in her presentence report data. On the other hand, despite his three prior felony and seven prior misdemeanor convictions, the uncle received the identical sentence now superimposed on Angela Thompson. These juxtaposed sentences are substantively and analytically no different from the kind of disproportionate sentencing condemned by former Chief Judge Breitel in his passionate dissenting opinion in People v Jones (39 NY2d 694, 698, supra [four pounds of heroin]; see, Brennan, Reason, Passion, and "The Progress of the Law” [Cardozo Memorial Lecture, delivered before the Association of the Bar of the City of New York], 10 Cardozo L Rev 3, 12 [1988]). Indeed, defense counsel argued, without contradiction, another aspect of disproportionality at the sentencing of Angela Thompson:

"There was also, during this arrest, the arrest of a third female, who could have been charged with an A-I felony, a young lady, I believe similar in age to the defendant. She had made or assisted in the sale, A-I weight, to Officer Dante Grey. And during the hearings it came out, I believe, her nickname was Shorty. But, my memory could be wrong, that the District Attorney’s Office decided not to prosecute her because they were afraid at that time that if they had arrested her, Mr. Little would know who the undercover officer was at that time, and this was early on in the proceedings. Now, granted, that’s a very legitimate concern, and I fully understand why the People would make that type of decision, to protect their undercover, which is, of course, a concern to everybody. But it shows how another young individual, just like Miss Thompson, doing the exact same act, because of discretion decisions by the District Attorney’s Office, is not standing here today, before the Court, facing these consequences. That she’s not being sentenced, she hasn’t even been charged. It’s alleged she did the same thing that Miss Thompson did on one occasion. The undercover testified, I believe, truthfully at trial. He never saw Angela Thompson on any other date during this investigation, before arrests were made, other than that one date that the sale was made. This was over a six week period of time, he’s back and forth to that location. It shows the type of involvement Miss Thompson had, if we accept the jury’s verdict, which, of course, Miss Thompson does not, but I have to face as her attorney. That type of disparity where individuals are not prosecuted for legitimate reasons, and because of the fear it might have that they might give information to someone else who has been arrested, and the type of disparity where Mr. Little receives the same sentence that this defendant faces today, although he chose to plead guilty and she chose to go to trial, maintaining her innocence, shows why this particular case is not a case where 15 to life should be given to the defendant.” (People v Thompson, Sup Ct, NY County, Dec. 11, 1989, Bing Newton, J., indictment No. 03994-89, Sentencing Minutes.)

The final outcome of this case requires no characterization, as it speaks starkly for itself. Angela Thompson must now be informed, five years after the original sentence and after having served nearly two thirds of her original minimum sentence, that a new fateful day of reckoning has arrived, as the Court of Appeals today effectuates the near doubling of her minimum sentence.

IL

The mandatory minimum sentence of 15 years with the prospect of incarceration for life represents one of the most severe penalties prescribed under New York State law. It reflects society’s and the Legislature’s high level of condemnation for the most reprehensible crimes and the most serious offenders, e.g., murder in the first and second degrees (Penal Law §§ 125.27, 125.25), kidnapping in the first degree (Penal Law § 135.25), and arson in the first degree (Penal Law § 150.20).

As noted, Angela Thompson’s sale was slightly over the required two-ounce weight to qualify as an A-I crime (compare, People v Ryan, 82 NY2d 497 [932.8 grams of mushrooms containing approximately 5,303 milligrams of controlled substance psilocybin]). The weight in this case was bumped up to A-I level by specific importuning from the undercover buyer-officer. The additional one tenth of an ounce, by the ruling of this Court today, thus adds up to seven more minimum years of imprisonment beyond that prescribed by the trial-sentencing Justice. Indeed, had those 2.13 grams not been tacked on, defendant would have been accountable for an A-II sale, whose mandatory minimum sentence is only three years (Penal Law § 70.00 [3] [a] [ii]).

By tendering this dissenting view, we intend no disrespect for the Legislature’s prerogatives in prescribing the types of criminal conduct and allocating appropriate punishment levels. This Court has acknowledged, after all, the Legislature’s power to severely limit the discretion that courts may exercise in sentencing decisions (see, People v Broadie, 37 NY2d, at 123, supra; Penal Law § 70.00). Correspondingly, however, respect must be accorded the principle that "the Constitution of this state confers power upon the courts to declare void legislative acts prescribing punishments for crime, in fact cruel and unusual” (People ex rel. Kemmler v Durston, 119 NY 569, 577 [the first electrocution death sentence held not cruel and unusual because it was "immediate” and "painless”, two propositions that are surely debatable in the wake of slightly over 100 years of experience and empirical data about electrocutions], affd sub nom. In re Kemmler, 136 US 436; People v Broadie, supra, at 119; see, NY Const, art I, § 5). While courts will grant appropriate deference to the Legislature regarding its presumptively constitutional sentencing promulgations, and to the Executive in the person and office of local prosecutors for implementing those sentences, no penalty should be entirely off limits to appropriate judicial responsibility. Rather, courts are obliged to scrutinize the sentences that they impose or review against applicable constitutional principles.

Historical analysis reveals that the constitutional prohibition against cruel and unusual punishment found under the State Constitution was primarily directed at sadistic and purely degrading cruelty, including all forms of torture, barbarity or inhumane treatment (see, People v Broadie, 37 NY2d, at 124, supra; Mulligan, Cruel and Unusual Punishments: The Proportionality Rule, 47 Fordham L Rev 639, 640-645 [1979]; see also, Matter of Bayard, 25 Hun 546, 549; Ordinance of 1638, in O’Callaghan, Laws and Ordinances of New Nether-land, 1638-1674, at 10, 12 [crimes should be punished "according to the circumstance of the case”]). Courts as far back as colonial New York considered on sentencing the "baseness of the offense, the behavior and the age and standing of the defendant” (see, Goebel and Naughton, Law Enforcement in Colonial New York, at 682, 702). Moreover, the evolving nature of the protection against cruel and inhuman punishment under the United States and New York State Constitutions includes examination of proportionality under contemporary standards (see, e.g., Harmelin v Michigan, 501 US 957 [650 grams of cocaine]; Solem v Helm, 463 US 277; Robinson v California, 370 US 660; Weems v United States, 217 US 349; People v Broadie, 37 NY2d 100, supra; People v Davis, 33 NY2d 221, cert denied 416 US 973; Berger, Justice Brennan vs. The Constitution, 29 BC L Rev 787, 787, n 4 [1988] [citing Address by Justice Brennan, Georgetown University, Washington, D.C., printed in The Great Debate: Interpreting Our Written Constitution, at 11 (Federalist Society 1986)]).

This is the first case since deciding People v Broadie (37 NY2d 100, supra) in which this Court, instead of leaving undisturbed the sentences below, substitutes the more severe, legislatively mandated minimum sentence in lieu of the sentence imposed by the prior courts in their effort to arrive at a constitutional, proportioned and appropriate sentence (see, People v McCleese, 71 NY2d 839; People v Ortiz, 64 NY2d 997; People v Donovan, 59 NY2d 834, affg 89 AD2d 968; People v Jones, 39 NY2d 694, supra; compare and contrast, People v Martinez, 191 AD2d 306 [sentence of 4 tí to 9 years for criminal sale of a controlled substance in the third degree reduced to 2 to 4 years]; People v Skeffery, 188 AD2d 438 [mandatory sentence of 15 years to life for criminal possession of a controlled substance in the first degree reduced to 5 years to life]; People v Andrews, 176 AD2d 530, lv denied 79 NY2d 918 [mandatory minimum sentence of 15 years to life for A-I drug felony reduced to five years to life to avoid being "cruel and unusual”]; People v Ramirez, NYLJ, Oct. 1, 1993, at 22, col 3 [17-year-old defendant given sentence of probation following conviction of criminal sale of controlled substance in the second degree]; People v Royster, 117 Misc 2d 112 [defendant sentenced to five years probation after pleading guilty to one count of criminal sale of a controlled substance in the third degree]).

In the instant case, the Court, by overturning the opposite views of both prior courts, effectively renders a first instance judgment that an Eighth Amendment transgression and the Broadie rare case exception are not present. The reversal of a lesser sentence binds defendant to the legislative yoke of the Rockefeller drug "solution” of the 70’s. In practical terms, it allows, ironically, no judicial sentencing discretion or departure from absolute mandates in the particular framework of this case and especially in the face of some enlightenment in the 90’s concerning the penological consequences of wholesale mandatory sentencings.

This area of the law also still lacks sufficient criteria by which the parties, the Bench and the Bar would be guided in how or when to appropriately request or invoke this court-decreed protection. The trial court expressed on the record the particular difficulty of sentencing under Broadie’s continued lack of specificity. If any realistic value is to be salvaged from the otherwise illusory promise of Broadie, that guidance should be forthcoming so as to justify the decision in this case and to test future ones.

In suggesting some factors as a start for the Court to build and articulate a useful and quite appropriate test in a real case setting, we by no means intend that any one or all of these factors should be determinative in a given case. While the Court cannot substitute its role for that of the Legislature and declare a comprehensive code, the Judiciary, in our respectful view, should provide some texture, context and substance beyond an exhortation that rare cases may result in departures from the mandatory sentences.

Some years ago, faced with a similar vacuum of legislative criteria for the exercise of the interests of justice dismissal power, the Judiciary filled the interstice (People v Clayton, 41 AD2d 204 [Hopkins, J.]). Spurred by that traditional common-law development (see also, People v Belge, 41 NY2d 60, 62), the Legislature eventually codified criteria for nisi prius guidance and appellate review purposes (CPL 210.40). Broadie’s atrophying rare case exception has apparently stimulated particular legislative attention in a bill that, arguably and as finally enacted, might allow an interests-of-justice consideration of a reduction in just such a case as the instant one (see, 1994 NY Assembly Bill A 7693). Angela Thompson’s sentence, if this bill were law, could be only 1 to 3 years. While legislative reform may be on the horizon, however, the courts cannot escape the obligation to decide this case under prevailing, evolving principles which might, as with Clayton and Beige, rouse appropriate legislative action.

We propose for this case, for future cases and until remedial legislation is a reality, that the analysis of a sentencing and appellate reviewing court under the rare case exception may include (1) objective criteria including, but not limited to: (i) the gravity and nature of the offense, (ii) the relative culpability of the defendant, (iii) the proportionality with other similarly situated or differentiated defendants; and (2) subjective criteria involving the history of the particular defendant. Trial courts can be counted on to competently and responsibly apply and particularize the factors and balance the enumerated objective and subjective criteria.

Interestingly, comparable assessments are duly entrusted for lesser liberty matters under narrow, judicially created review standards for administrative agency disciplinary determinations (see, Matter of Pell v Board of Educ., 34 NY2d 222). If a penalty "shocks the judicial conscience” in that field of law, Judges strike it down. In this different but parallel field, where the most serious liberty interests are at stake, this cruel and unusual mandatory sentence shocked the conscience of the Trial Justice, the Appellate Division, and it shocks at least two Judges at this final level of review. We respect the fact that reasonable minds might disagree on the application of available criteria, and that we and other courts could conclude differently as to whether a particular defendant and case qualifies as a rare case exception. As-applied constitutional adjudication does not, however, justify the failure to articulate and apply contemporary sentencing guidelines which would make our respective and respectable differences on application in this case more understandable.

More specifically, the pertinent factors should include any exceptional special circumstances inhering in the nature of the criminal transaction itself. Since the gravity of drug crimes is keyed to the weight of the drugs sold or possessed, the amount of the drugs in weight and dollars should be part of the exceptional sentencing appraisal. Selling pounds of an illegal drug with a value of hundreds of thousands or even millions of dollars should not be per se homogenized with relatively and significantly smaller transactions of a few hundred or thousands of dollars. Scale is key and is relevant to the proportionality analysis. There could also be an assessment of the conduct and actions of the law enforcement personnel from the time of the commission of the crime, if they are involved, through the prosecution phases. Consideration should, of course, be given to the number or length of times that a defendant participated in criminal activity and whether a sentence less than the most severe mandatory variety would deprecate the seriousness of the particular crime in general, in relation to other participants charged and uncharged, and in relation to other serious crimes of equal classification rank.

Next, a defendant’s relative pecking order, as subservient or dependent, contrasted to those with relatively higher and especially, as here, the highest hierarchical power and control, is pertinent. The degree of sophistication generally and with respect to the particular criminality, as well as the precipitating agent or cause of the crime, have some bearing on appropriate and proportionate sentencing. An employee-serf-like defendant who has no entrepreneurial role and financial stake, should not be treated at the same level as the kingpins and bosses (People v Jones, 39 NY2d 694, 698, supra [Breitel, Ch. J., dissenting]).

We emphasize that our view does not create or promote a per se drug millhand or courier rare case exception, nor does youth or any particular age alone justify the invocation of the rare case exception. While those features are appropriate to the over-all particular analysis, they do not constitute their own artificial, automatic entitlement to departure from the prescribed mandatory minimum.

In assessing proportionality of the punishment, traditional sentencing concepts such as the character of a defendant, personal history and special circumstances are indispensable. This facet would include the age, school record, employment history and family circumstances. This review is limited to presentencing activities. Any personal or family history, or rehabilitation following sentencing while in prison, cannot be considered on our constitutional inquiry on the direct appeal relating to the judgment of conviction but is reserved for collateral judicial review, correctional department considerations and even clemency applications (see, People’s motion to strike portions of respondent’s brief and Appendix, granted simultaneously with this decision on the People’s appeal). Included, too, would be consideration of the proportionality of the sentence between persons more seriously involved in the same offense, like the uncle codefendant here, who received the same or lesser sentence as defendant and the other young woman who apparently was not charged at all. Empirical data and analysis may even be developed or discovered from official correctional records and reports to show that these kinds of mandatory sentences fall disproportionately and exploitively on young minority recruits including, as in this case, an African-American teenage woman (see, US Dept of Justice, Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? The Transition to Sentencing Guidelines, 1986-1990, at 10-14 [Executive Summary] [1993] [wide sentencing disparities based on race discovered in crack cocaine crime category]). Moreover, the wholesale enlistment of numerous youngsters into drug trafficking is not a reason for the Judiciary to preclude the use of the Broadie rare case exception. Rather, it represents a greater urgency and responsibility to apply it responsibly and appropriately, even if some additional individuals would qualify for relatively more lenient, but also more proportionate, sentencing.

Not to be overlooked either is the fact that appellate review would be available under identifiable and measurable standards as we have suggested (see, People v Belge, 41 NY2d 60, supra). In the highest judicial tradition, we urge nuanced exceptional sentence exertions justified by on-the-record explication, not some open-ended discretion. No one should forget that public officers in the other two branches of government are not inherently or presumptively wiser and more conscientious than judicial officers — or vice versa — and the other branches have not been invested with unilateral power over the liberty of individuals. To the contrary, the unique responsibility of sentencing is traditionally reposed in neutral Magistrates, not in partisan prosecutors. Ultimately, it is Judges who bear the singular, awesome duty of facing defendants in open court on the day of reckoning to declare the law’s sentencing judgment.

IIL

In sum, this case focuses on the distribution of the power of sentencing adjudication in a particular category and framework. It implicates and resolves who really exercises that momentous duty, under what circumstances, and with what respectful checks-and-balances.

We decided to dissent because we concluded the Judiciary has more power and responsibility than it is undertaking in this case and in this critical adjudicative area. The exception from the mandatory absolutes of the sentencing scheme was described generally in People v Broadie (37 NY2d 100, supra [Breitel, Ch. J.]). While that aspect was a key ingredient to Broadie’s holding, the originator of the idea ironically saw his equalizing qualification rejected when the Court first considered and ruled, 4 to 3, against invoking the reserved authority; it declined to declare a particular rare case exception in that drug factory millhand case (People v Jones, 39 NY2d 694, 698, supra [Breitel, Ch. J., dissenting]). Today, the exhortation should be animated because it is buttressed by empirical data and a record that justifies resolute, differentiated sentencing (compare, People v Bing, 76 NY2d 331, 338; see, Appendix). The Court should not be deterred by floodgate speculation. Real criteria and appellate review are sufficient guardians against runaway sentencing exercises generally and in individual cases.

What was not cruel and unusual in 1789 (ratification of Constitution) or 1888 (decision in Kemmler case with his execution) may well be unconstitutional in 1994. Similarly, what was not rare in the subset of the cruel and unusual punishment concept in 1975 (Broadie) and 1976 (Jones) may be ripe for such classification today. We believe that constitutional adjudication is a dynamic, evolving process, not a static set of revered relics. The genius of Chief Judge Breitel’s exception should be given life today, not be frozen in the time and meaning of 20 years ago (Brennan, The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 544 [1986]; Berger, Justice Brennan vs. The Constitution, 29 BC L Rev 787, 787, n 4 [1988] [citing Address by Justice Brennan, Georgetown University, Washington, D.C., printed in The Great Debate: Interpreting Our Written Constitution, at 11 (Federalist Society 1986) ("[Constitutional interpretation must account for the transformative purpose of the text”)]).

Prosecutors, as Executive Branch officers, should not enjoy the power to shackle judicial responsibility while they zealously seek to incarcerate masses of criminal drug offenders (compare, People v Roe, 74 NY2d 20, 29, 35 [Bellacosa, J., dissenting] ["Some very disproportionate miscarriages of justice — this case is one of them — will certainly ensue from this prosecutorial leverage in elevating reckless manslaughter to murder.”]). A balanced judicial role, envisioned as necessary by Broadie and exercised by prudent Trial Judges whose sentences would remain subject to the leavening, harmonizing review by the Appellate Divisions on appeal by prosecutors, is necessary. The prior courts in this case made a wise, humane, fair, bold and correct sentencing ruling, justified by the record, by their findings and by a host of the factors we have proposed. We should sustain their effort, not overturn it and stifle future efforts.

We conclude that the hardly lenient sentence of eight minimum years to life originally imposed on Angela Thompson should be upheld by affirming the prior courts as heralds of the arrival of Broadie’s promise that a rare case exception does indeed exist.

Chief Judge Kaye and Judges Simons and Smith concur with Judge Levine; Judge Bellacosa dissents and votes to affirm in a separate opinion in which Judge Ciparick concurs; Judge Titone taking no part.

Order reversed, etc.

APPENDIX OF SELECTED STATISTICS AND USEFUL SOURCES

Some measurement of the impact of this mandatory sentencing scheme is illustrated by some statistics drawn from a mass of data and official reports.

• In 1982, 63% of New York State’s correctional inmates were violent criminal offenders; by 1992, that percentage had shrunk to 34%. In 1973, the State’s prison population was 12,444 (see, 1985 Determinate Sentencing Report and Recommendations, NY St Comm on Sentencing Guidelines, at 135).

• By 1982, the prison population had doubled to 25,499 (see, 1985 Determinate Sentencing Report and Recommendations, NY St Comm on Sentencing Guidelines, at 135) and, by 1991, the total prison population exceeded 60,000 inmates, a 480% increase in 20 years.

• State prison sentencing resulting from felony indictment arising from the sale or possession of narcotics increased from 2,865 in 1985 to 13,185 in 1991 (see, 1989 Crime and Justice Ann Report, Div of Criminal Justice Servs, at 250; 1991 Crime and Justice Ann Report, Div of Criminal Justice Servs, at 193).

• In 1989, State prison sentences resulting from drug indictments accounted for 46% of the prison sentences, compared to only 18% in 1985 (1989 Crime and Justice Ann Report, Div of Criminal Justice Servs, at 249).

• The percentage of offenders in the State prison system with a mandatory determinate sentence of five years or more increased from 37% in 1974 to over 52% in 1983 and is surely still climbing (see, 1985 Determinate Sentencing Report, op. cit., at 136).

• Following the implementation of the Federal Sentencing Reform Act of 1984 and the new mandatory minimum imprisonment provisions of the Anti-Drug Abuse Act of 1986, substantial aggregate differences in sentences imposed on White, Black and Hispanic offenders have been identified. During an 18-month study beginning in January 1989, on average, Black offenders sentenced to prison had imposed sentences that were 41% longer than Whites. This disparity is directly related to Congress’s determination to treat the trafficking of crack and powdered cocaine differently. Eighty-three percent of all Federal offenders convicted of trafficking in crack cocaine were Black, and the average sentence imposed for crack trafficking was twice as long as for trafficking in powdered cocaine (see, US Dept of Justice, Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter?, The Transition to Sentencing Guidelines, 1986-1990, at 1 [Summary] [1993]).

* * *

1985 Determinate Sentencing Report and Recommendations, NY St Comm on Sentencing Guidelines.

1989 Crime and Justice Ann Report, Div of Criminal Justice Servs.

1990 Crime and Justice Ann Report, Div of Criminal Justice Servs.

1991 Crime and Justice Ann Report, Div of Criminal Justice Servs.

Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U Ch L Rev 901 (1991).

Karle and Sager, Are the Federal Sentencing Guidelines Meeting Congressional Goals?: An Empirical and Case Law Analysis, 40 Emory LJ 393 (1991).

Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 Cal L Rev 61 (1993).

Mulligan, Cruel and Unusual Punishments: The Proportionality Rule, 47 Fordham L Rev 639 (1979).

Rosenblatt, New York’s New Drug Laws and Sentencing Statutes (1973).

Signorelli, A Judicial Analysis and Critique of the New Drug and Sentencing Laws, 46 NY St BJ 9 (Jan. 1974).

US Dept of Justice, Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter?, The Transition to Sentencing Guidelines, 1986-1990, at 1 (Summary) (1993).


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    [633 NE2d 1089, 611 NYS2d 485]
    In the Matter of Rodney J., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued March 17, 1994;
    decided April 28, 1994

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth I. Freedman and Francis F. Caputo of counsel), for appellant.
    I. The petition and annexed supporting documents properly alleged, in nonhearsay form, every element of the crime of criminal possession of a weapon in the third degree. The certified ballistics report annexed to the petition, attesting to the operability of the weapon and ammunition in nonhearsay form, fully comported with Family Court Act requirements governing facial sufficiency of the petition, and did not render the petition jurisdictionally defective. (Matter of Philip M., 179 AD2d 1034; People v Sullivan, 56 NY2d 378; People v Bromley, 85 Misc 2d 988; Matter of Alex B., 189 AD2d 813; Johnson v Lutz, 253 NY 124; Matter of Gregory M., 184 AD2d 252, 81 NY2d 708; Matter of Ronald B., 61 AD2d 204; Matter of Rodney J, 108 AD2d 307.) II. Assuming any defect existed, such defect was purely technical rather than jurisdictional, and did not render the petition fatally deficient or mandate dismissal, since any such defect could have been adequately cured by amendment, if necessary. (Matter of Philip M., 179 AD2d 1034; Matter of Edward B., 80 NY2d 458; Matter of Bruce T., 190 AD2d 805; People v DeLeon, 157 Misc 2d 62; Matter of Christopher B., 192 AD2d 180.) III. In the absence of a timely objection relating to the ballistics report being "unsigned” by the maker of the report, respondent in effect abandoned this argument. As the claimed defect was not apparent from the face of the accusatory instrument, it was not the type of nonwaivable jurisdictional flaw that may be considered even in the absence of a timely objection. (Matter of Edward B., 80 NY2d 458; Drexel Burnham Lambert v Ruebsamen, 171 AD2d 457; Shepherd v Whispering Pines, 188 AD2d 786; Morey v Sings, 174 AD2d 870; Davis v Sapa, 107 AD2d 1005; VDR Realty Corp. v Mintz, 167 AD2d 986.)

      Marcia Egger, New York City, Lenore Gittis and Arlene Libowitz for respondent.
    The Court below properly found the petition charging criminal possession of a weapon to be jurisdictionally defective for failure to make out a prima facie case where (a) the ballistics report needed to establish the operability of the weapon was hearsay because it was not signed by its maker and (b) the ballistics report was not sworn to and therefore was not the equivalent of sworn testimony. (Matter of David T., 75 NY2d 927; Matter of Jahron S, 79 NY2d 632; Matter of Detrece H., 78 NY2d 107; People v Potwora, 44 AD2d 207; People v Cavines, 70 NY2d 882; People v Arroyo, 188 AD2d 655; People v Wesley, 168 AD2d 940; People v Lugo, 161 AD2d 122, 76 NY2d 860; People v Wearing, 126 AD2d 586; Matter of Alex B., 189 AD2d 813.)
   OPINION OF THE COURT

Levine, J.

A juvenile delinquency petition was filed against respondent in Family Court, Bronx County, charging him with criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree and the unlawful possession of a weapon by a person under 16 years of age. A supporting deposition was attached to the petition, sworn to by Police Officer John Lowe, stating that he had observed respondent in possession of a .22 caliber gun, which upon inspection proved to be loaded. Officer Lowe’s deposition contained no allegations regarding the operability of the weapon. Also affixed to the petition was a copy of a police laboratory analysis report, setting forth the results of a ballistics examination of the weapon and stating that the "gun and ammo tested are operable”. The report did not contain the signature of any person expressly identified as the tester of the weapon. However, it was signed by a Detective Robert Cotter, identified as a "chemist/technician” in the police laboratory, below a certification which stated:

"I hereby certify that the foregoing report is a true and full copy of the original report. False statements made herein are punishable as a Class 'A’ misdemeanor pursuant to section 210.45 of the Penal Law.”

Respondent moved to dismiss the petition as jurisdictionally defective due to the absence of nonhearsay allegations establishing every element of the crimes charged, specifically the operability of the gun. Family Court denied the motion, having elicited from the presentment agency a representation that Detective Cotter was in fact the person who prepared the original ballistics report. Respondent ultimately entered an admission to conduct constituting criminal possession of a weapon in the third degree and a final order of disposition was entered.

Respondent appealed and the Appellate Division reversed and dismissed the petition, with one Justice dissenting (194 AD2d 342). The Court held that the petition and its supporting documents were facially deficient because they lacked a nonhearsay allegation that the weapon was operable. The Appellate Division granted the presentment agency leave to appeal to this Court and we now affirm.

A juvenile delinquency petition is "the sole instrument for the commencement, prosecution, and adjudication of the juvenile delinquency proceeding” (Matter of Detrece H., 78 NY2d 107, 110) and we have cautioned that a careful assessment of the petition "is particularly acute at the outset of a juvenile delinquency proceeding, where there is no independent Grand Jury-like body to review the evidence and the petition is often the sole 'instrument upon which the [accused] is prosecuted’ ” (Matter of Edward B., 80 NY2d 458, 464-465 [quoting People v Alejandro, 70 NY2d 133, 137]).

Family Court Act § 311.1 sets forth the definition and required contents of a petition, and provides in part that it must include "a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the crime charged and the respondent’s commission thereof’ (Family Ct Act § 311.1 [3] [h]). Family Court Act § 311.2 addresses the sufficiency of the petition and provides in pertinent part that it is facially sufficient when, inter alla, "non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent’s commission thereof’ (Family Ct Act § 311.2 [3]). A petition which does not substantially conform to the requirements of sections 311.1 and 311.2 is defective and subject to dismissal (Family Ct Act § 315.1 [1] [a]; [2]).

In Matter of Jahron S. (79 NY2d 632), we construed the foregoing provisions as requiring that the petition and supporting depositions, to be legally sufficient, must contain non-hearsay allegations establishing a prima facie case of delinquency (id., at 639). Thus, while the sufficiency of the petition is to be assessed by the factual allegations contained in the petition as well as any supporting documents that may be attached (id., at 638), the omission of nonhearsay allegations concerning any element of the offenses charged renders the petition legally insufficient and constitutes a nonwaivable jurisdictional defect (see, Matter of Detrece H., 78 NY2d 107, 109, supra; Matter of David T., 75 NY2d 927, 929).

We agree with the majority at the Appellate Division that the petition and its supporting documents in the instant case were jurisdictionally defective on their face insofar as they failed to contain a nonhearsay allegation of the weapon’s operability. The deposition of Officer Lowe is silent regarding this element. The annexed ballistics report, although attesting to the gun’s operability, purports only to be a copy of the original report, and gives no indication that it was signed by the person who tested the gun and prepared that original report. Although the signature of Detective Cotter appears on the report, he only certified that the report is an accurate copy of the original report, and did not actually attest to any personal knowledge of the gun’s operability. However likely it may be, as the presentment agency argues, that Detective Cotter was the technician who tested the gun and prepared the original report, the fact remains that the nonhearsay nature of the annexed report is not clear on its face. Because the test of the sufficiency of the petition is a facial one (Family Ct Act § 311.2; Matter of Jahron S., supra), any reliance by the presentment agency on its oral representation to Family Court that Detective Cotter prepared the original report is misplaced.

We further reject the presentment agency’s alternative contention that the asserted defect in the petition did not mandate dismissal but could have been properly cured by amendment. Although Family Court Act § 311.5 permits certain amendments to the petition before or during the fact-finding hearing, subdivision (2) (b) of that provision bars amendment for the purpose of curing "legal insufficiency of the factual allegations”. In Matter of Detrece H. (78 NY2d 107, supra), we held that the plain language of section 311.5 (2) (b) extended to a petition’s legal insufficiency for failure to contain allegations in the requisite nonhearsay form, and thus amendment to remedy such a defect was precluded by the statute (id., at 110). The presentment agency’s reliance on Matter of Edward B. (80 NY2d 458, supra) in an attempt to characterize the deficiency here as a latent one is unpersuasive. In Matter of Edward B., we held that dismissal of a juvenile delinquency petition is not mandatory when a deficiency in the petition is not facially apparent but only is revealed during the course of the Family Court proceedings. Unlike the defect at issue in Matter of Edward B., however, the deficiency in the instant case is apparent from the face of the document, and therefore Matter of Detrece H. is controlling and dismissal of the petition was warranted.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.

Order affirmed, without costs.

      . The presentment agency does not dispute on this appeal that operability is an element of a weapon possession charge (see, People v Covines, 70 NY2d 882, 883).

        . The presentment agency’s alternative contention that the ballistics report qualified under the business record exception to the hearsay rule is without merit, as the foundational requirements for the applicability of that exception are not apparent on the face of the document (see, CPLR 4518). We need not decide on this appeal whether a report setting forth the proper foundation under CPLR 4518 would suffice to establish the requisite non-hearsay allegations.


author: Ciparick, J.

text:
    [634 NE2d 157, 611 NYS2d 785]
    The People of the State of New York, Respondent, v Eddie Matos, Appellant.
    Argued January 11, 1994;
    decided February 22, 1994

      POINTS OF COUNSEL

      Jonathan G. Hager, Philip L. Weinstein and Mary C. Roth-well, New York City, for appellant.
    Appellant’s conviction of murder in the second degree violated due process where his flight from the scene of a felony via a rooftop was not a "sufficiently direct cause” of a police officer’s subsequent fatal fall from the roof. (Morissette v United States, 342 US 246; People v Warner-Lambert Co., 51 NY2d 295; People v Kibbe, 35 NY2d 407; People v Wood, 8 NY2d 48; People v Luscomb, 292 NY 390; People v Huter, 184 NY 237; People v Gladman, 41 NY2d 123; People v Campbell, 72 NY2d 602; People v Lewis, 111 Misc 2d 682; People v Cassidy, 40 NY2d 763.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Alan Gadlin and Mark Dwyer of counsel), for respondent.
    The People overwhelmingly proved that defendant’s conduct caused Officer Dwyer’s death and that he was guilty of felony murder. (People v Gladman, 41 NY2d 123; People v Benzinger, 36 NY2d 29; Matter of Anthony M., 63 NY2d 270; People v Stewart, 40 NY2d 692; People v Duffy, 79 NY2d 611; People v Kibbe, 35 NY2d 407; People v Galle, 77 NY2d 953; People v Kern, 75 NY2d 638, 498 US 824; People v Warner-Lambert Co., 51 NY2d 295, 450 US 1031; People v Roth, 80 NY2d 239.)
   OPINION OF THE COURT

Ciparick, J.

The issue to be considered in this appeal is under what circumstances a fleeing felon’s actions cause another’s death for purposes of Penal Law § 125.25 (3), the felony murder statute.

There was evidence at trial that, in the early morning hours of October 17, 1989, defendant, Eddie Matos, and two accomplices broke into a McDonald’s restaurant on Seventh Avenue and 40th Street in Manhattan by shattering the glass door with a sledgehammer. Once inside, Matos and his accomplices rounded up the employees at gunpoint. A maintenance worker, however, managed to escape and then returned to the restaurant with three police officers. As they approached the restaurant, they saw Matos run toward the back of the restaurant. The officers ran into the restaurant in time to see Matos climb up a ladder that led to the roof. Police Officer Dwyer hurriedly climbed up the ladder right behind Matos. About 10 seconds later, another officer, Sergeant Flanagan, proceeded up the ladder to the roof and later discovered Dwyer lying on his back about 25 feet down an airshaft. It took emergency services personnel about 45 minutes to rescue Dwyer from the airshaft, but he was later pronounced dead at Bellevue Hospital.

The Appellate Division affirmed the conviction of murder in the second degree, burglary in the second degree and attempted robbery. The Court concluded that the elements of felony murder were established. A Judge of this Court granted leave to appeal and we now affirm.

It is well established that in order for criminal responsibility to attach, a defendant’s actions must have been an actual contributory cause of death (People v Stewart, 40 NY2d 692, 697). It must be shown that the defendant sets in motion the events which ultimately result in the victim’s death (People v Kibbe, 35 NY2d 407). However, the defendant’s acts need not be the sole cause of death (Matter of Anthony M., 63 NY2d 270, 280).

Here, defendant’s conduct set in motion and legally caused the death of Police Officer Dwyer. Had defendant not first committed an armed violent felony and then attempted to escape by way of the roof, the officer would not have pursued him onto the roof, thereafter plunging to his death in the airshaft.

The trial court stressed to the jury that "but for” causation was only one step in determining cause in the criminal context, an aspect defendant-appellant does not dispute. Additionally, the jury was told that it must also find that defendant’s conduct was a sufficiently direct cause of the ensuing death before it could impose criminal responsibility. The defendant’s conduct qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen (People v Kibbe, 35 NY2d, at 412, supra).

The accused need not commit the final, fatal act to be culpable for causing death. In Kibbe, the fatal act was inflicted by a passing truck driver who struck and killed the victim. The defendants were held to have caused his death, for the event was a directly foreseeable consequence of their own earlier act of abandoning the victim on the shoulder of a highway. In People v Kern (75 NY2d 638), the "Howard Beach” defendants were held to have caused their victim’s death even though he was actually killed by the intervening act of a passing motorist.

In People v Hernandez (82 NY2d 309), this Court held that the defendants initiated or participated in the chain of events that led to an officer’s death by attempting to rob an undercover officer in a failed drug transaction. Since, in initiating a gun battle, they should have foreseen that someone’s bullet might go astray, their conduct was a sufficiently direct cause of a backup officer’s death even though the shot which killed him was fired by another officer. The Court held (supra, at 319) that "[ijmmediate flight and attempts to thwart apprehension are patently within the furtherance of the cofelons’ criminal objective,” citing People v Gladman (41 NY2d 123). The Court further noted that foreseeability does not mean that the result must be the most likely event.

In the instant case, the jury was correctly given the issue as to whether it was foreseeable that upon defendant’s attempt to escape by way of the roof, he would be pursued by an officer. In those circumstances it should also be foreseeable that someone might fall while in hot pursuit across urban roofs in the middle of the night.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Levine concur; Judge Titone taking no part.

Order affirmed.


text:
    [634 NE2d 158, 611 NYS2d 786]
    X.L.O. Concrete Corp., Respondent, v Rivergate Corporation, Appellant.
    Argued February 10, 1994;
    decided March 24, 1994

      POINTS OF COUNSEL

      Bragar & Wexler, P. C., New York City (Raymond A. Bra-gar, Paul D. Wexler and Beth A. Willensky of counsel), for appellant.
    The concrete agreement violates the antitrust laws and, therefore, is not enforceable. (Matter of Aimcee Wholesale Corp. [Tamar Prods.], 21 NY2d 621; Big Top Stores v Ardsley Toy Shoppe, 64 Misc 2d 894, affd sub nom. Matter of Big-Top Stores v Ardsley Toy Shoppe, 36 AD2d 582; Connolly v Union Sewer Pipe Co., 184 US 540; Kelly v Kosuga, 358 US 516; Continental Wall Paper Co. v Voight & Sons Co., 212 US 227; Kaiser Steel Corp. v Mullins, 455 US 72; Jefferson Parish Hosp. Dist. No. 2. v Hyde, 466 US 2; Arizona v Maricopa County Med. Socy., 457 US 332; Murray Walter, Inc. v Sarkisian Bros., 183 AD2d 140.)

      Lester Gulitz, Peekskill, for respondent.
    I. Appellant has failed to demonstrate that it is entitled to the windfall attendant to declaring a contract, collateral to an illegal conspiracy, of which the parties to the contract are two of the victims, illegal: Rivergate should not be allowed to get XLO’s work, labor and services for nothing, or even at a discount from the agreed price, when it purported and agreed to pay for it. (Connolly v Union Sewer Pipe Co., 184 US 540; Kelly v Kosuga, 358 US 516; Viacom Intl. v Tandem Prods., 526 F2d 593; Continental Weill Paper Co. v Voight & Sons Co., 212 US 227; Kaiser Steel Corp. v Mullins, 455 US 72; Murray Walter, Inc. v Sarkisian Bros., 183 AD2d 140.) II. The Court of Appeals should resolve the conflict between the Departments as to whether an appeal may be considered when it is upon an order subsequently superseded by a judgment. (Lloyd Capital

      Corp. v Pat Henchar, Inc., 152 AD2d 725, 80 NY2d 124; Knight v Continental Cas. Co., 130 AD2d 626; Mack v Mack, 130 AD2d 632; Reinhart v Terra Nova Ins. Co., 124 AD2d 795; Men’s World Outlet v Estate of Steinberg, 101 AD2d 854; French Am. Banking Corp. v Stern, 70 AD2d 562; Chase Manhattan Bank Natl. Assn. v Roberts & Roberts, 63 AD2d 556; Title Guar. & Trust Co. v Hicks, 283 App Div 723; Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788; Matter of Pessano, 269 App Div 337, 296 NY 564.) III. The Court below erred in reinstating Rivergate’s second counterclaim because the State court is without subject matter jurisdiction. (Telaro v Telaro, 25 NY2d 433.)

      G. Oliver Koppell, Attorney-General, New York City (George Sampson, Jerry Boone, Robert Hubbard and Joseph Opper of counsel), pro se, amicus curiae.

    The construction contract is void under New York law and enforcing it is against public policy. (People v Rattenni, 81 NY2d 166; Palmer v BRG of Ga., 498 US 46; United States v Topco Assocs., 405 US 596; Gerzof v Sweeney, 22 NY2d 297; New York v Hendrickson Bros., 840 F2d 1065, 488 US 848; Anheuser-Busch, Inc. v Abrams, 71 NY2d 327; State of New York v Glen & Mohawk Milk Assn., 61 NY2d 705; People v Roth, 52 NY2d 440; Judd v Harrington, 139 NY 105.)
   OPINION OF THE COURT

Ciparick, J.

The question presented in this action for breach of contract, account stated, and unjust enrichment is whether interposition of an antitrust illegality defense under the Donnelly Act (General Business Law § 340 et seq.) prevents enforcement of the contract between these parties as a matter of law. We conclude that material questions of fact exist which preclude granting summary judgment on defendant’s antitrust defense and thus affirm the Appellate Division order which reinstated plaintiff’s complaint.

I

The parties, plaintiff X.L.O. Concrete Corp., as subcontractor, and defendant Rivergate Corporation, as general contractor, entered into a written contract on May 12, 1983 for construction of the concrete superstructure and fills of a project located in Manhattan. Plaintiff fully performed its obligations under the contract and sought payment of $844,125.07, the balance due and owing. Defendant refused to pay on the ground that the contract was an integral feature of an extortion and labor bribery operation known as the "Club”.

The "Club” was an arrangement between the "Commission” of La Cosa Nostra, a ruling body comprised of four of the five New York City organized crime family bosses, and seven concrete construction companies operating in New York City, and the District Council of Cement and Concrete Workers, Laborers International Union of North America (see, United States v Salerno, 868 F2d 524, 528-529, cert denied 493 US 811 [describing the Club and its workings in fuller detail]). The Commission decided which concrete companies would be permitted to undertake construction jobs in New York City worth more than $2 million dollars; contractors who took jobs over $2 million were required to pay the Commission 2% of the contract price for guaranteed "labor peace”. The Commission not only approved which companies got which jobs, but also rigged the bidding to ensure that the designated company would submit the lowest bid. The Commission enforced compliance through threatened or actual labor unrest or violence. In May 1981, plaintiff became the last concrete contractor doing business in New York City to join the Club.

The Rivergate project was allocated to plaintiff by the Commission on the assumption that it would not exceed $15 million. Plaintiff’s principal, James Costigan, paid the 2% "labor peace” fee to Ralph Scopo, the Commission’s representative and the business manager and president of the District Council of Cement and Concrete Workers. Plaintiff then negotiated the terms of the contract with defendant. The parties agreed on a figure of $16,300,000 (later adjusted to $16,544,125.07).

The contract price exceeded the amount approved by the Commission, and Scopo, acting on behalf of the Commission, approached Costigan and requested that his company abandon the project. Costigan refused, arguing that the Commission had not allocated his company any work in over 18 months. Scopo carried Costigan’s message back to the Commission and the Commission decided to permit plaintiff to work on the project. Costigan subsequently gave Scopo a $50,000 "gift” for speaking favorably on plaintiff’s behalf to the Commission.

The record indicates that defendant negotiated the contract with full knowledge of the Club and its rules. Plaintiff completed the work agreed upon under the contract and, upon defendant’s refusal to pay, commenced this action.

Defendant interposed in its answer a "third affirmative defense and first counterclaim” urging dismissal of the complaint on the ground that the contract was an integral element of an antitrust conspiracy in violation of the Donnelly Act. Defendant’s "fourth affirmative defense and second counterclaim” sought recovery of monetary damages for injuries sustained allegedly as the result of plaintiffs violations of the Sherman Antitrust Act (15 USC § 1). A third counterclaim sought attorney’s fees and costs under the contract.

Plaintiff moved for summary judgment dismissing defendant’s first and second counterclaims on the ground that they were time-barred, and defendant cross-moved for partial summary judgment dismissing the complaint. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint, and additionally dismissed defendants’ first two counterclaims as time-barred and the third counterclaim on the ground that the contract was void. The Appellate Division modified the order and judgment of Supreme Court to the extent of reinstating plaintiffs complaint. The Appellate Division also reinstated defendant’s counterclaims "to the extent of the demand in the complaint”, and as so modified, affirmed. This Court now affirms.

II

Defendant’s main contention on this appeal is that the contract at issue is so integrally related to an antitrust conspiracy in violation of the Donnelly Act that it is void and unenforceable as a matter of law. We reject this contention, concluding that outstanding material issues of fact exist.

The interposition of antitrust defenses in contract actions is not favored (see, Kelly v Kosuga, 358 US 516, 518). The concern is that "successful interposition of antitrust defenses is too likely to enrich parties who reap the benefits of a contract and then seek to avoid the corresponding burdens” (Viacom Intl. v Tandem Prods., 526 F2d 593, 599). Nevertheless, antitrust defenses will be upheld in cases where a court’s judgment would result in enforcement of the "precise conduct made unlawful by the Act” (Kelly v Kosuga, 358 US 516, 520, supra; see, Kaiser Steel Corp. v Mullins, 455 US 72, 79). Beyond that point, however, "courts are to be guided by the overriding general policy * * * 'of preventing people from getting other people’s property for nothing when they purport to be buying it’ ” (Kelly, 358 US, at 520-521, supra [quoting Continental Wall Paper Co. v Voight & Sons Co., 212 US 227, 271] [Holmes, J., dissenting]). Thus, a contract which is legal on its face and does not call for unlawful conduct in its performance is not voidable simply because it resulted from an antitrust conspiracy (see, Kelly, 358 US, at 521, supra; Connolly v Union Sewer Pipe Co., 184 US 540, 547-550; Viacom, 526 F2d 598, supra; but see, Continental Wall Paper, 212 US 227, supra).

This Court has held that the Donnelly Act, having been modelled on the Federal Sherman Act of 1890, " 'should generally be construed in light of Federal precedent and given a different interpretation only where State policy, differences in the statutory language or the legislative history justify such a result’ ” (see, People v Rattenni, 81 NY2d 166, 171 [quoting Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 335]). Indeed, courts which have considered interposition of antitrust defenses in contract actions have followed the rule and rationale of Kelly (supra) (see, e.g., Dachowitz v Bergman, 113 Misc 2d 236, 239 [Sup Ct, NY County]; Fleet-Wing Corp. v Pease Oil Co., 29 Misc 2d 437, 441 [Sup Ct, Erie County], mod on other grounds 14 AD2d 728; see also, New York Stock Exch. v Goodbody & Co., 42 AD2d 556 ["where the antitrust violation is collateral to the main issue in the complaint, it cannot remain as a viable defense”]; Columbia Broadcasting Sys. v Roskin Distribs., 31 AD2d 22, 25, affd in part, dismissed in part 28 NY2d 559 [Sherman and Clayton Acts "may not be pleaded in defense of an action for goods sold and delivered or services rendered”]).

We note that the contract sought to be enforced is legal on its face and does not contemplate or require conduct in violation of the antitrust laws in its performance. Moreover, the mere fact that the contract is related to an antitrust conspiracy does not automatically render it unenforceable (see, Kelly, 358 US, at 521, supra). Rather, the critical question is whether the contract is so integrally related to the agreement, arrangement or combination in restraint of competition that its enforcement would result in compelling performance of the precise conduct made unlawful by the antitrust laws (id., at 520). This question we cannot answer on the record before us. Whether the contract was an indivisible, effectuating component of an illegal arrangement that would be consummated by granting the judgment sought in this action is a question that requires further development at trial.

The extent to which the contract price is excessive and discriminatory and fails to reflect fair market value at the contract date because of an unlawful attempt to stifle competition is an important issue requiring development. The unlawful use of market power to inflate the contract price, and the resulting anticompetitive effects, must be assessed in determining whether granting the judgment sought "would be to make the courts a party to the carrying out of one of the very restraints forbidden by the [antitrust laws]” (Kelly, 358 US, at 520, supra; see also, Continental Wall Paper, 212 US, at 261, supra).

Additionally, the equities of the parties must be examined. Courts should avoid upholding antitrust defenses in contract cases where doing so would work a substantial forfeiture on one party while unjustly enriching the other (see, Kelly, 358 US, at 520-521, supra; Murray Walter, Inc. v Sarkisian Bros., 107 AD2d 173, 178; see also, Comment, The Defense of Antitrust Illegality in Contract Actions, 27 U Chi L Rev 758, 768-769 [the strongest fear held by courts in contract actions involving antitrust illegality defenses is the possibility of forfeiture and unjust enrichment]). A relevant consideration is whether sustaining the illegality defense would render the contract void in its entirety or whether recovery could still be had on a quantum meruit basis. Additionally, the relative culpability, bargaining power, and knowledge of the parties to the contract should also be considered in assessing the possibility of unjust enrichment.

Finally, the public policy in favor of frustrating or discouraging unlawful schemes such as the Club must not be deprecated. However, such a danger is reduced where statutory remedies exist and the State Attorney-General can directly attack the alleged antitrust violations.

In light of our analysis, the Court rejects defendant’s remaining contention that the contract should be held per se illegal under the Donnelly Act.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question should be answered in the affirmative.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Levine concur; Judge Titone taking no part.

Order affirmed, etc.