People v. Lopez

139 Misc. 2d 448, 528 N.Y.S.2d 748, 1988 N.Y. Misc. LEXIS 221
Procedural entryThis page is a short order in People v. Lopez. Read the opinion of the Court — 144 Misc. 2d 325
New York Supreme Court·Decided March 2, 1988·Published

Opinion

OPINION OF THE COURT

Lewis L. Douglass, J.

The trial which resulted in this defendant’s conviction of conspiracy to sell heroin clearly established that the defendant was a major drug distributor. Undercover police officers, through contacts made at the street level, eventually purchased drugs from the defendant, during a four-month period, involving payments of $26,000. When the defendant’s apartment was raided, immediately preceding his arrest, over $400,000 in small bills were found under the flooring of the apartment and another $50,000 was found in a safe. At the time of sentence, when this court imposed the maximum prison term, the District Attorney’s office advised the court that following the defendant’s arrest there was a significant reduction in the available drugs on the streets in the section of Brooklyn where the defendant operated.

[449]*449THE PENAL LAW PROVISION REQUIRING RESTITUTION TO CRIME VICTIMS IS APPLICABLE TO DRUG DEALERS

In addition to imposing a prison sentence, Trial Judges are required under section 60.27 of the Penal Law to consider whether a defendant should be ordered to make restitution to crime victims. (People v Turco, 130 AD2d 785.) In most cases the court will know the specific victim and how much he or she lost. The question to be decided here is whether Penal Law § 60.27, requiring the making of restitution, is applicable to drug dealers, since in those cases a specific victim is not readily identifiable.

It is beyond debate that drug dealers create victims. Victims are those whose homes are robbed by addicts seeking to support their habit. Victims are parents who see the lives of their children destroyed. Victims are all of us who must bear the enormous cost of law enforcement incurred in the effort to combat the spread of drugs.

All crimes, however, create those victims who are indirectly harmed by criminal activity. Section 60.27 of the Penal Law contemplates victims who are directly injured by criminal activity.

It is the drug addict, though he or she cannot be.identified, who is the direct victim of the drug dealer. Just as the robber knows that his victim will suffer loss of property and possible physical injury the drug dealer knows the consumer of his product will sustain injury to his health, and as that consumer turns into an addict, his life will continue to deteriorate.

In discussing the gravity of drug trafficking the Court of Appeals has specifically found that "[t]his debilitation [i.e., the addiction] of men, as well as the disruption of their families, the Legislature could also lay at the door of the drug traffickers”. (People v Broadie, 37 NY2d 100, 113.)

Not only is it clear that addicts are the drug dealers’ victims, but it would be improbable to conclude that the Legislature, in adding section 60.27 to the Penal Law, intended to exclude from its sanctions drug dealers, who must be viewed as among the most serious criminal offenders. Moreover, the Legislature has specifically directed in Penal Law § 5.00 that the Penal Law is not "to be strictly construed” but should be "construed according to the fair import of [its] terms” and "to promote justice and effect the objects of the law. ” (Emphasis added.) That general legislative mandate, [450]*450to read the Penal Law to "promote justice”, was specifically reiterated in the legislative findings to an amendment of section 60.27 where the Legislature said: " 'The legislature hereby finds and declares that it is the policy of this state to encourage restitution by a person convicted of a criminal offense to the victims of his or her criminal activities in appropriate cases and to the extent that the defendant is reasonably able to do so. This act [amending subd. 1] shall be interpreted and administered to effectuate this policy.’ ” (L 1983, ch 397, § 1, set forth in Historical Note, McKinney’s Cons Laws of NY, Book 39, Penal Law § 60.27, at 191.)

Although no New York court has utilized section 60.27 to order the payment of restitution by convicted drug dealers, the Southern District in US v Badalamenti (SD NY, June 26, 1987, No. 84 Civ-236) imposed restitution against several drug dealers. In so doing the court said:

"The importation of narcotic drugs into the United States unquestionably causes severe bodily injury requiring medical and psychiatric care and therapy, even though it is difficult to identify with precision the individuals who were injured by the particular narcotics imported by a particular defendant, absent being able to trace a direct sale.

"It seems to me appropriate * * * to call for the establishment of a fund of restitution which would be devoted to providing rehabilitation and care for persons injured by addition to narcotics.”

Having determined that addicts are the victims within the contemplation of Penal Law § 60.27, the next question is how to determine the amount of restitution.

THE DAMAGE CAUSED BY DRUG TRAFFICKERS

When the victims are drug addicts who cannot be specifically identified it is impossible to determine the precise amount of medical expenses incurred by any single addict. Because drug addiction is so destructive to a person’s general well-being, the medical and related costs incurred by the total number of addicts is an astronomical figure. For those who are treated by the most inexpensive method, that is, on an outpatient basis, the annual cost is $2,400.1 For the untreated and unconnected addict no one really knows the cost. The most modest estimates, however, result in enormous amounts. For [451]*451example, it could be modestly assumed that any addict would face $500 of expenses in any year, as a result of either medical cost or loss resulting from his or her inability to maintain a job. Thus, over a five-year period each of the thousands of addicts in any city would sustain, by this most modest estimate, individual losses of $2,500. The loss caused by drug traffickers becomes even more dramatic when it is recognized that the loss sustained by individual addicts is only a small component of the total cost that society, at large, faces as a result of the 200,0002 heroin addicts, and even more cocaine users in the City of New York alone. For example, in 1985, the New York City hospital system handled over 3,000 emergency room drug-related episodes. Thirty per cent of AIDS victims are intravenous drug users. In addition to these health costs, there is the enormous cost that flows from the relationship between drug addiction and violent crime. A 1983 study by the Division of Substance Abuse Services of the State of New York found that a daily heroin user committed an average of more than 200 nondrug crimes a year, including 12 robberies and 34 burglaries. As shown hereafter, this defendant’s operation placed drugs in the bodies of thousands of individuals. Thus, the actual loss he has caused would run well into the millions of dollars.

Since damage caused by drug traffickers is so enormous that no one dealer could realistically pay the actual amount of the damage he has caused, the restitution figure should have some relationship to the defendant’s capacity to pay, otherwise it could be so unrealistic, as to have no practical significance.

THE SIZE OF THE DEFENDANT’S OPERATION

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People v. Lopez, 139 Misc. 2d 448, 528 N.Y.S.2d 748, 1988 N.Y. Misc. LEXIS 221 (N.Y. Super. Ct. 1988).

139 Misc. 2d 448 (People v. Lopez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Broadie
332 N.E.2d 338 (New York Court of Appeals, 1975)
People v. Turco
130 A.D.2d 785 (Appellate Division of the Supreme Court of New York, 1987)