Joseph Bellavia v. Walter Fogg, Warden, Green Haven Correctional Facility, Stormville, New York

WATERMAN, Bеfore MANSFIELD and TIMBERS, Judges. Circuit TIMBERS, Judge: Circuit judgment entered appeal from On York, of New in the Eastern District Sifton, Judge, P. which de- Charles District prisoner’s for a petition a state writ of nied challenges corpus, the con- habeas stitutionality his state court conviction possession sale of cocaine three grounds: that New York’s of motor occupants drugs are all vehicle which narcotic contains knowing possessors drugs, N.Y. Penal 1978-79), 220.25(1) (McKinney Supp. Law § equal process pro- denied him due law; (2) tection of impris- to life net sentence fifteen Penal N.Y. Law onment under 3(a) (McKinney 70,00(2)(a) §§ punishment; unusual constituted cruel and out, (3) briefly that he was denied the effective and searched in the back seat of rolled-up assistance of counsel at his trial. promptly car. He removed a paper bag, high, abоut ten brown inches below, agree For the reasons with the Kelly. Kelly gave it and handed it to rejection district court’s of each said, your Molfetta and “Here’s stuff.” lant’s claims. We affirm. again pretended Molfetta to test the con- back-up tents. He then called in his units. I. Kelly, Veltri and Bellavia were arrested. Appellant Joseph Bellavia and his co-de- rolled-up bag Later tests confirmed that the fendants, Veltri, Kelly Michael and Joseph contained 31 ounces of cocaine. were arrested undercover New York Bellavia, Kelly and were City police indicted Brooklyn Septem- officers on Veltri Court, Kings County, in the Immediately prior ber 1972. to the ar- rests, (1) dangerous three counts: criminal sale of the three were about to conclude the drugs degree, (2) in the first pos- criminal sale of 31 ounces of cocaine to undercover dangerous drugs session of in the fourth officer Nicholas Molfetta. Undercover offi- degree, possession criminal of dan- negotiating Kelly cers had been gerous drugs degree. in the first The three purchase Veltri for this of cocaine since defendants were convicted on each of the August Originally 21. scheduled for mid- jury three counts night September after trial before Hon- the transaction was postponed Ryan. to the orable John J. September afternoon of delayed and then was another five hours trial, At the Bellavia did not take the Kelly’s late arrival Brooklyn at bar stand Throughout in his own defense. which had been chosen for the rendezvous. trial, Hanft, attorney, Esq., adopt- his Solon Increasingly anxious telephone conversa- Ryan ed what very Justice referred to as “a tions, hand, on the one between Veltri and profile”. low He allowed counsel for the bar, the undercover officers waiting in the defendants, it, other put Sifton and, hand, on the other Kelly between carry laboring By “to oar.” such trial Veltri, Kelly established that had the co- strategy, hoped emphasize he the mini- waiting caine but was delivery of some played mal role his client had heroin which the undercover officers also deal. buy.1 wished to explained Veltri to Molfet- law, In accordance with New York Jus- delay ta that the reason for the was “that Ryan charged tice the jury that the evi- [Kelly’s] it’s not his stuff.” presence dence of Bellavia’s in the car con- Kelly finally shortly arrived at bar taining permitted cocaine them to infer before 9 p. September m. on response 7. In coсaine, he possession had but Molfetta, to a question from Kelly said that they required were not to do so. The drugs were with his brother-in-law “in judge that, charged jury further stepped car.” He get outside to a sam- light of the evidence introduced the de- ple of the cocaine. He gave it to Molfetta fendants, part or because of silence on the pretended who to “snort” lavatory it defendants, could refuse to of the bar. pronounced Molfetta it satisfac- possession draw the inference of which the tory. Kelly, Veltri and Molfetta then left presumption permitted. The State relied bar, distance, walked a short and came solely on the its case parked to a car in which Bellavia was seat- against Bellavia. ed behind the wheel. After the return of the guilty verdicts.

Kelly asked package. Bellavia for a Bel- April Bellavia was sentenced on 1973 to lavia side, slid across the passenger’s got years concurrent terms of 15 to life on the customary transactions, 1. As Thus, “girls” in illicit for heroin and stood for cocaine. Kelly there were no direct girls references to narcotics told the officer that he had the two phone. over the waiting boys Officer Molfetta testified that but was still to arrive. Kelly code, “boys” used a under which stood counsel, count, years unconstitutionality first of 7 on the a maximum sistance count, statute, to life second and 15 and cruel drug presumption third count. punishment.2 unusual The coram nobis July 1975. Leave to petition denied conviction to the appealed Bellavia appeal Appellate Division was denied Division, Appellate Department. Second May 1976. He there was insuffi claimed as error that conviction, cient his support evidence to 5, 1977, January commenced On Bellavia prosecutor’s that the summation denied him corpus proceeding instant the habeas trial, Ryan’s a fair limitation that Justice of District of New York. After some Eastern one direct examination of witness was an by Judge matters were handled preliminary discretion, abuse of that he and had been Sifton, opinion he filed a well reasoned denied of equal protection the law because each of the ruling upon June three classifying the New York statute the seri beginning claims set forth at of this by ousness of offenses amount of opinion. judgment From the entered on purity involved did not allow for the Judge denying opinion petition Sifton’s of the contraband substance. His conviс appeal for a writ of habeas corpus, has tion unanimously was affirmed without been taken. Bellavia, opinion. People A.D.2d (2d Dept. 1974). 358 N.Y.S.2d 959 Leave to III. Appeals appeal of was Court denied September 1974. In light of facts prior these and to proceedings,3 appellant’s we turn first May On filed with Jus- Bellavia 4 that process claim he was denied due and Ryan petition tice a coram nobis under N.Y. equal protection by law the New 440.10 Crim. Proc. Law and 440.20 §§ statutory presumption York that the occu 1971), (McKinney seeking to have his con- of a pants motor vehicle which contains ground viction and sentence vacated drugs knowing possessors narcotic are all rights that his constitutional had been- in- drugs. Law fringed. 220.25(1) were in N.Y. Penal § Seven claims asserted petition, 1978-79).5 including (McKinney Supp. claims ineffective as- gloss 2. The other claims asserted his coram nobis 439 U.S. 1091 added a to his —has petition were that he had been denied his con- constitutional emerged claims so have by rights public stitutional the exclusion of the quite presented different from those trial; portions from of his that he had been to the state court. by denied a fair trial the claimed destruction of balance, however, special under the and evidence, purportedly namely, tapes crucial circumstances of this we have concluded by might made exculpatory the State have which contained justice that the interests of will be best served by Kelly; classifying remarks by proceeding directly to merits of the arbitrary capri- cocaine as a narcotic was and claims raised. ‍‌‌​​‌​​‌​​​‌‌​‌‌‌​‌​​‌​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌‌‌‌​​​‍cious; classifying drug and that offenses contraband, pure amount of drug content, rather than its only appeal This is the 4. claim on before us as arbitrary capricious. was Judge to which probable a Sifton issued certificate of expressly denied cer- cause. He such technically 3. We hold that Bellavia has ex- appellant’s ap- tification as to other claims on hausted his state since his remedies coram no- peal. petition present bis did claims that at least were labeled the those set same as forth in his 220.25(1) provides; 5. N.Y. Penal Law § Henderson, petition. instant habeas 533 F.2d Lunz v. (2 1976) (three presence 1324 n. 3 Cir. “The substance in & controlled omnibus, petitions ai) automobile, public coram nobis to held have exhausted other than remedies). presumptive knowing posses- state evidence every person note, however, sion thereof each We exhaustion issue government automobile at the such controlled points here out, time sub- is a close one. theAs found; except pre- appellant’s presumably stance was sumption that such in an ef counsel — (a) duly apply respect' to a fort recently decided, does not li- execute an end run with operator controlling, censed who is at cases an automobile of this Lopez Curry, operating hire in Court such as rel. Garcia time it for the lawful ex trade, 1978), (b) (2 proper pursuit 583 F.2d 1188 and person Cir. Carmona v. Ward, 1978), them, (2 576 F.2d 405 if one of the automobile hardly upheld applied constitutionality look We need further than Chief statute, nearly Kaufman’s .Judge of last Term in identical York N.Y. 265.15(3) (McKinney Lopez Curry, Supp. ex rel. Garcia v. 583 F.2d 1188 Penal Law § 1976-77), (2 presence which makes in an auto- constitutionality to sustain 220.25(1) Here, presumрtive mobile of a firearm to Bellavia. evidence possession by persons occupying of its all Lopez, “dealership quantities” as in County the automobile. drugs Court Ulster were involved. Kaufman’s Allen, County, New York v. Lopez equally applicable conclusion (1979), rev’g (2 1977). F.2d 998 Cir. here: in Allen held that it Court was error to Legislature justifi- “The therefore had “pass constitutionality on the of this kind of cation to find that those discovered in an ”, statute ‘on its face’ 442 U.S. at with- automobile with dealership quantities of determining out whether the controlled substances are more likely mandatory; presump- fact the knowing possession than not to have mandatory, tion was not as the New York drugs. Accordingly, we hold 220.- § Appeals People Court had held v. 25(1) to applied be constitutional as Lemmons, 505, 510-11, 40 N.Y.2d 354 large quantities such of narcotiсs.” 583 97, (1976). N.E.2d 387 100 N.Y.S.2d (footnote omitted). F.2d at 1192 case, pre- Likewise in the instant Moreover, the New York Ap- Court of sumption by created N.Y. Penal Law 220.- § peals upheld the constitutionality of 220.- 25(1) has been permissive, held to be a not a 25(1) applied very as case out of mandatory, presumption by the York New Lopez which the habeas case arose. People Appeals. People Court of Leyva, supra, v. Leyva, v. 38 N.Y.2d 341 N.E.2d 370 38 N.Y.2d at 341 N.E.2d at (1975). agree N.Y.S.2d We with the judge N.Y.S.2d at 36. And the trial by conclusion reached Judge Sifton below in Ryan, instant Mr. Justice instructed following reasoning of the New York . jury accordingly. Appeals People Court of Leyva, v. supra : uphold We applied as to Bellavia the con- final argument “Petitioner’s is that the stitutionality 220.25(1). of N.Y. Penal Law § statutory presumption contained in N.Y. We upon decline to rule the constitutionali- Penal Law is unconstitutional. [§ 220.25] ty of the statute on its face pre- since the For the Leyva reasons set forth in sumption permissive, is mandatory. not Superintendent, F.Supp. (E.D.N.Y. 1977) remanded, [vacated We hold that was not denied (2 1978)] People Leyva, process equal protection due or of the law 38 N.Y.2d (1975), N.Y.S.2d under the Fourteenth Amendment. this Court concludes that the

is not IV. unconstitutional as to the facts of this case involving significant We turn next to Bellavia’s claim quantity of cocaine and that failure mandatory net sentence of fifteen by the trial court to limit the statute to to life pursuant on him situations where large quantities of drugs 70.00(2)(a) 3(a) N.Y. Penal Law §§ were ‍‌‌​​‌​​‌​​​‌‌​‌‌‌​‌​​‌​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌‌‌‌​​​‍involved was harmless in view of (McKinney 1975) constitutes un cruel and the fact that a large quantity of cocaine usual Eighth in violation of the was all that (cita- was at issuе here.” Amendment. omitted). tions As with the claim statutory presumption Finally, as recently past as this Term the discussed above under section III

Supreme Court in unmistakable language opinion, regard appellant’s mandatory having thereof, (c) obtained the controlled substance and sion when the controlled sub- being duress, pos- not under upon person is authorized to stance is concealed of one of sess it occupants.” such controlled substance in posses- same container as when he received allotting virtually excessively penal- sentence claim as foreclosed tion severe very recent of our con Court which Id. at 410. ty for the crime.” provi strued the same sentence considering severity pun- After rejected here sion involved and sub ishment, punishments compared with stаntially the same constitutional claim as is compared other crimes in New York and as Ward, here asserted. Carmona v. with punishments jurisdictions in other (2 crime, Judge Mulligan the same concluded: “In view of the extraordinary crisis faced Carmona, very thorough after a re- York, by the State caused law, view of the Amendment case drug trafficking, crime of we cannot Judge Mulligan acknowledged pro- its agree with the district court beyond hibition reaches “torture or other punishments meted appellees out id. at punishment”, barbaric modes of here are constitutionally defective.” Id. but noted that Court never at 417. solely had struck down a sentence because We have been invited to substitute our of its length. Turning to a consideration of court, judgment only not for that of a state sentencing New York scheme under thе test,6 legislature, “disproportionality” but for that of a he stated: state and to the mandatory order imposed, here “The crucial issue therefore becomes limits, which is within statutory to be va- whether Legisla- New York State respect great cated or reduced. Our is so dangerousness ture’s assessment of the of judici- traditional role of the federal selling possessing crimes of and of ary interfering in not which it, cocaine with matters an intent to sell as re- properly imposed, province legisla- flected in the is are the of a state so unreasonable that it violates the constitu- ture respect profound and our is so Mulligan, judicial statutory 6. See and “Cruel Unusual Punish- branch of the sentence ”, Proportionality imposed ments: The Rule 47 Fordham for the crime committed with those (1979) (Sonnett Lecture). imposed L.Rev. 639 for more serious offenses in the jurisdiction. problem same ing The Judge Mulligan’s upon of determin- lecture also focuses gravity particular dangers of a crime is diffi- the' second-guess involved in a court’s efforts to enough having judg- legislature cult without to make in the latter’s sphere competence, simple of ments about other crimes. It is the assessment of the rather particular penal- smoking seriousness of a crime and the to make a decision that way in the sub- ty legislature ought provide: rape. compar- that the is not as serious as But prong [proportionality] ing punishments “The first of the the crimes of and for arson requires judgment kidnapping, test to the seriousness of the court larceny to make a as automobile charged driving, the crime requires digestion drunken this of course invites the substitution of thе penological sociological vast amount subjective judge views of the for those of the usually jurist. data not comparisons available to the The legislature. The concern here is consti- both mechanically applied cannot be practical. tutional and We must observe the danger judiciary’s and the of the substitution separation powers doctrine of as well as judgment of its on a social issue for that of emphasizes federalism. This the need for legislature charged responsibili- with the judicial consideration, practical restraint. A ty making initially appar- the decision course, is the institutional limitation on ent. judicial factfinding. legislature, acting step proportionality test The third of the through commissions and committees with requires compare the court to the sentence counsel, hearings, public funds for is staff and under review with those in other patently equipped judiciary better than the (cid:127) jurisdictions This is the same crime. to make the factual and social determinations susceptible misuse facilitat- least as tool gravity which underlie decision as to the ing judicial poli- the substitution individual of a crime. It is also more attuned to con- cy legislature. views for those of the At the temporary community and can standards time, basically antag- same it is flawed and judge public’s partic- best concern about principles of federalism.” Id. at onistic to activity. ular criminal omitted). (footnotes 646-47 prong The second of the test is even more comparison vulnerable since it calls for a denied, (1950). Accord, g., e. 338 U.S. recently enunciated law of this Circuit Carmona, Bubar, the invitation.7 that we decline United 567 F.2d 201- States denied, (1977); cert. (2 Cir.), 434 U.S. sentence does appellant’s hold that We Warden, Rickenbacker v. 65-66 F.2d punish- and unusual cruel not constitute cited, cert. (2 Amend- and cases there of the in violation ment denied, Hen Lunz v. (1977); ment.

derson, (2 Cir.), y. Bellavia’s remain brings This us to summary the best We think that effective he was denied the ing claim that facts before us which belies record This claim can be of counsel. assistance lant’s claim of ineffective assistance any stan summarily, for under disposed by Judge is the statement Sifton counsel merit; utterly without the claim is dard denying Bella- of June stringent especially this is so under corpus. petition for a writ of habeas via’s standard this Circuit. 1949), cert. We set it forth in margin.8 full in the Wight, (2 to disturb. Carmona construed concurring-dissenting Court refused col- 7. We note that our provision league same as con- would nоt decline the invitation. the trols the instant case and constitutional claim characteristically thoughtful, rejected inno- Mansfield’s vative the the same opinion, suggest, read in should be here. asserts light following Moreover, Judge Mulligan’s of the observations. discussion of Car- First, proportionality colleague’s displeas- rule in his Son- the thrust of our mona and the appears large published ure the be directed at Lecture in the Fordham Law measure to nett Review, presumption provided complete supra, provides for in N.Y. note emphasis dissenting colleague’s plea Penal upon appellant’s response Law 220.25. The dissent’s to our occupant appellant’s role as a mere of the un- sentence as cruel and set aside (actually wheel) car he was behind the strikes punishment. usual panel us as irrelevant since the is unanimous in Finally, having in mind that the United States rejecting appellant’s challenge to the constitu- "has never found a sentence Court tionality statutory presumption, of the which of imposed Eighth in a criminal case violative required by Lopez course is our decision in ex merely because of its Amendment Curry, supra, rel. Garcia v. able and the unmistak- ”, Carmona, (em- length supra, at language Supreme County of the Court in phasis added), to our learned with deference Allen, County, Court of Ulster New York v. question legal dissenting colleague both the we supra, reversing in our decision in Allen v. feasibility sug- practical of his basis and the gested County Court, (2 568 F.2d 998 Cir. where referring in this to the mandate virtually we struck down as unconstitutional a following paragraph in the last of his statement identical New York statute which created a dissenting opinion: firearms, presumption based on than rather .1 would remand the case with di- narcotics, pellant Here, ap- found in an automobile. appellant rections to release the state court within 60 . . . unless arrested, convicted, was indicted and days resentences alia, large quantity inter cocaine. for the sale of a him to a term consistent with the limitations of the Amendment.” Second, appellant’s conviction and manda- resentencing judge The would have course tory year unanimously to life sentence was ques- no more discretion under the statute in by Appellate affirmed the and the Division original sentencing judge tion than the did. and Appeals appeal. York Court of denied leave to imposed The sentence as was The Governor of the State of New York denied constitutionality sentencing provi- the of that appellant’s clemency petition. We thus have a upheld by in sion was our Court Carmona. situation where the Chief Executive of the suggest the state court that a And even to new sentence be to State, State, judges at least seven of the the “consistent with judges three federal have declined the invita- Eighth Amendment” in the limitations of the tion to disturb the sentence which is within light Supreme of the United States Court’s re- statutory limits. fusal ever to strike down a sentence because of its Third, granted dissenting colleague’s that our length, giant step strikes us as more of a opinion appears primarily to be addressed to than ior courts”. one the “infer- should be taken us as York, Legislature of the State of New constantly only keep should in mind not is, all, cоntrolling precedent, ing powerful in but the 8. first of not a case like that reason- “This Judge Mulligan’s opinion, v. Williams F.2d in Carmona v. [575 Ward, supra (2 attorney handling 1978)], decision which the Cir. of a novice —a (concurring MANSFIELD, Judge Circuit was not denied hold We dissenting): counsel under assistance the effective carefully rea- in Timbers’ I concur Amendment. Sixth deni- it affirms the insofar as soned his to set aside application appellant’s al of Affirmed. However, I dissent conviction.1 state court his criminal client’s first trial. Petitioner’s trial at- minimal involvement in the transac- torney thirty years opening had over of criminal trial tion. The waiver of an statement experience and too-clearly counsel on sentence and in was rational in a which case a (on petitioner’s appeal on direct which articulated defense would аssure that incompetence raised) issue of not was were prosecutor would concentrate his efforts attorneys former district known to this Court attacking join it. The to failure the motion practition- as able law and effective criminal by co-counsel for a mistrial when the crimi- long ers. Of course at bar even those nal records of were co-defendants may nod on occasion or learn little from their experience. However, an examination of the brought out or to move a severance is certainly part understandable as effort an record out bears the conclusion of the state gain acquittal by contrasting petitioner’s to judge argument court to whom this was first greater minimal in- involvement presented any per- deficiencies in the culpable volvement of more co-defendants. formance of trial counsel cannot be laid circumstances, sep- Under all the arately considered ignorance. collectively, trial counsel’s conduct examples par- of counsel’s deficiencies hardly mockery trial a of the made farce or presented allel those liams, supra: in United States v. Wil- and, events, proceedings in all did not opening an waiver of state- demonstrate a assist- likelihood effective ment, cross-examination, tardy ineffective ance was not rendered.” inadequate motions and an summation. petitioner complains addition of his trial Underscoring position 1. a taken me in Indi- put counsel’s failure to him the witness viglio States, Cir., (2d v. United F.2d 624 object alleged stand and his failure 79-2021, 26, 1979, Slip Op. Dkt. No. 5446), Nov. unconstitutionality statutory presump- of the holding I concur in the that Bellavia was 220.25], tion contained N.Y. Penal Law [§ not denied effective assistance of not counsel However, put counsel’s decision not to merely attorney’s because his assistance meets client on the stand was reasonable in view mockery the “shock the conscience—farce and his client’s admissions were intro- which not justice” standard that remains the criterion People’s duced on the un- case Circuit, Wight, in this see United States v. doubtedly would have been on cross-exami- page F.2d 376 and decisions cited at su- petitioner. nation of ob- Counsel’s failure to pra, but because it also satisfies the liber- more ject constitutionality of the adopted by al and lenient standards out presumption cannot be faulted view of DeCoster, 10 other circuits. States United circumstances of this case which over U.S.App.D.C. 326, 331, 487 F.2d pound car, of cocaine was found in (D.C. 1973) (“reasonably competent assist- which, infra, pre- circumstance noted Bosch, ance”); United States v. cludes conclusion that (1st competent 1978) (“reasonably 1120-21 unconstitutionally applied in this case. assistance”); States, Moore v. United 432 F.2d petitioner’s complaints The balance of con- 730, (3d (en 1970) banc) (“customary 736 Cir. cerning the of his all effectiveness counsel Maryland, knowledge”); skill and Marzullo v. apparent involve cerning of differences con- 540, (4th 1977), 543-44 de Cir. cert. strategy in effective trial the defense nied, 1011, 1885, 435 U.S. 98 S.Ct. L.Ed.2d 56 by shown client the evidence to be con- (1978) (“normal competency”); 394 United siderably less involved transaction 881, Gray, Cir.), (5th States v. 887 than his co-defendants. This court cannot denied, 955, 1587, 98 cеrt. 435 U.S. S.Ct. 55 determine these decisions were so (1978) (“reasonably 807 deprive L.Ed.2d sel”); effective coun petitioner as to irrational fair a 716, Toney, 527 720 contrary appear v. F.2d trial. theOn most under- (6th 1975), sub part ‍‌‌​​‌​​‌​​​‌‌​‌‌‌​‌​​‌​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌‌‌‌​​​‍Cir. cert. denied nom. Pruitt v. strategy standable as of a deliberate States, 838, 107, United 97 culpability 429 U.S. S.Ct. 50 minimize defendant’s when com- (1976) pared (“reasonably 104 L.Ed.2d sistance”); as with his effective co-defendants. Other deci- appropriate sions United States ex rel. are understandable as de- Williams v. 634, given Twomey, Cir.), petitioner’s (7th 510 fenses F.2d 641 circumstances of cert. Williams, Certainly minimal nom. v. involvement. no denied sub Sielaff 423 U.S. there is 876, 148, requirement'that (1975) (“mini S.Ct. 46 109 constitutional 96 L.Ed.2d counsel cover by professional representation”); matters covered co-counsel, mum cross-examination standard Parratt, 411, (8th particularly allowing where v. F.2d 412-13 oth- Morrow 574 сarry emphasizes 1978) laboring (“customary diligence”); ers to oar skills Cir.

376 Moreover, to disturb the Amendment. that Amendment from its refusal Draconian mandatory imposed upon appel- sentence is not limited to such sanctions as torture pursuant lant to N.Y. Penal Law 70.00—a barbarity prohibits but infliction 15 a minimum of and maximum disproportionate punishment grossly that is imprisonment, acting life for at most as the gravity to the of the offense committed. driver of automobile which cocaine an States, 349, 217 30 Weems v. United U.S. by owned and sold others outside of his 544, (1910); 54 v. S.Ct. L.Ed. 793 Rummel presence my was located. In view this Estelle, (5th 1978); F.2d 1193 Cir. 568 Dow sentence, mandatory applied pe- as to the Perini, ney (6th Cir.), va v. 518 F.2d 1288 ripheral so figure involved in this is remanded, 993, cated and 423 U.S. 96 S.Ct. disproportionate to the offense committed 419, 46 (1975); L.Ed.2d 367 Griffin v. Ward by him as to shock the conscience and cоn- en, (4th denied, Cir.), 517 756 cert. 423 F.2d Eighth prohibi- travene the Amendment’s 990, 402, 96 46 U.S. S.Ct. L.Ed.2d 308 against tion the infliction of “cruel and (1975); Coiner, (4th Hart v. 483 F.2d 136 unusual punishments.” denied, 938, 1973), cert. 415 U.S. reaching accept In this conclusion I 1454, (1974); re S.Ct. L.Ed.2d 495 principles recently basic outlined our es 410, 217, Lynch, Cal.Rptr. 8 Cal.3d colleague Mulligan teemed in his (1973); Lorentzen, People P.2d 921 v. Ward, scholarly opinion in Carmona 167, 194 (1972); Mich. People N.W.2d 827 (2d denied, F.2d 405 cert. Broadie, 100, 471, 37 N.Y.2d 371 N.Y.S.2d 1091, 874, (1979). 99 S.Ct. 59 L.Ed.2d 58 950, 332 N.E.2d 423 U.S. It is legislature, the role as the voice (1975); S.Ct. L.Ed.2d 287 Mc people, to determine in the first Commonwealth, Donald v. 173 Mass. instance what anti-social conduct is to be aff'd., N.E. punished prescribe and to the penalty to be 21 S.Ct. 45 L.Ed. 542 In deter imposed upon legislature’s violators. mining grossly whether a penalty dispro decision, reflecting as it does care portionate to the offense committed the weighing ful of the societal interests in faсtors, court must consider all relevant volved, not only pre must be treated as including the of the seriousness offense sumptively valid highest but accorded the charged, severity of the sentence judicial respect. Ordinarily a compared with prescribed sentences for oth penalty prescribed legislature by the should jurisdiction er criminal conduct within the be regardless enforced the court whether and comparison a with court would have sentence those pun lesser jurisdictions ishment if it had been with vested the dis authorized other cretion to do so. A person challenging a same I crime. To these factors would add legislative penalty heavy therefore bears a nature the criminal conduct of the burden. In this case I believe that burden A challenged. defendant whose has been met. may be constitutional major can applied to a violator be cruel and recognized

As Carmona, the Found- person ing unusual as to a who is legislators Fathers did not vest our In the peripheral participant. minor latter prescribe punish- untrammeled ‍‌‌​​‌​​‌​​​‌‌​‌‌‌​‌​​‌​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌‌‌‌​​​‍discretion to ment. grossly Were that the case well be punishment may case there would have been point no in adopting disproportionate gravity of the de- Cooper Fitzharris, 1325, (9th applied, v. 1327 should re-evaluate the standard to be 1978) (en banc), denied, 974, Warden, suggested 440 cert. U.S. as was in v. Rickenbacker 1542, (1979) (“reason 66, 99 62, S.Ct. Facility, 59 L.Ed.2d 793 Auburn Correctional ably competent effective”). and (2d 826, 98 67 434 U.S. 103, However, (1977). In of S.Ct. 54 L.Ed.2d view the fact nine 85 that circuits have adopted appropriate along a is not that different test an case for the reason lines оf “rea- competence,” leaving only sonable of of all the Second conduct Bellavia’s counsel satisfied rule, adhering and Tenth Circuits to the old I the above tests. appropriate

believe that in an case this court conduct, drug whereas in the former it narcotic within the State or been fendant’s of a sen- impermissibility not. The there, would any irregular behavior guilty of not in tence is a matter to be determined punishment and unusual inflicts a cruel in In that bail providing vacuo. “Excessive violation of the Fourteenth Amendment. required, be nor excessive fines shall not sure, impirisonment ninety days To be nor imposed punishments cruel and unusual abstract, not, punishment is a added), (emphasis inflicted’’ the Amend- cruel or which is either unusual. But the merely was directed not at the facial ment question cannot be considеred in the ab- enactment, legislative of a but at provisions day prison stract. one Even would be application statutory of a mandate in punishment a cruel unusual and Breitel, speaking As practice. Judge Chief having (Rob- a ‘crime’ of common cold.” Broadie, People for a unanimous court in California, 660, 667, inson v. 100, 113, 477- N.Y.2d N.Y.S.2d (1962)). 8 L.Ed.2d 758 S.Ct. 332 N.E.2d 343-344 stated: Pennsylvania ex Similarly, in rel. Sullivan consideration, assessing second “A Ashe, 51, 55, 59, 61, 302 U.S. S.Ct. proportionality punishment of the to (1937), recognized the Court L.Ed. crime, is the character of the offender sentences, justice “for the determination gravity poses of the to and the threat he generally requires consideration of more society. None of the cases in- present particular than the acts which the crime what are often volved called ‘accidental’ was and that there be committed taken into True, not all of defend- offenders. these account the circumstances offense are ‘hardened’ each ants criminals. together the character propensi- with however, defendant was convicted ties of the also offender.” See Woodson v. least ‘street’ or co- of at sales heroin Carolina, North 96 S.Ct. caine, possession large or a amount L.Ed.2d narcotics, to two of the situations which here, Applying principles the statutes were directed. these the crime selling any substantial amount of cocaine legislative that he “The one, unquestionably extremely an grave large a narcotics possesses who amount of harm, posing great breeding seller social is a would also seem reasonable. wide- McNair, spread who аrrested in conduct of other types, Defendant was criminal in- violence, that were a heroin premises cluding veritable crimes and therefore ‘factory’ drug over an ounce of warranting penalties. severe In Carmona possession, hardly constructive her possession we decided of one ounce of culpable dangerous less or than the cocaine, felony an A-II under New York’s who lants made ‘street’ sales. 220.18, laws, N.Y. Penal Law § eight actually punishable “These defendants were by mandatory penalty a of six then, presumptively, at least narcotics pursuant imprisonment life to N.Y.- sellers, only not 70.00, under broad comparable Penal Law to first- definition, narrower, but literal murder, degree first-degree kidnapping, sellers, sense well. As cannot first-degree first-degree rape arson and their roles in the scourge disclaim that this classification could not be charac- might The Legislature distribution. rea- arbitrary or terized as irrational. We also sonably society deem posed the threat concluded, vigorous over dissent of grave each these defendants a one Oakes, despite penal- the lesser indeed.’’ ties York for crimes such disproportionality arson, is a second-degree first-degree man- matter, relative be resolved in con- slaughter, first-degree burglary second- text of case. given circumstances of a degree despite kidnapping the fact that prescribes mandatory no impris- hold other state life “We that a state law which cocaine, criminal, person ons thus of one afflicted as a for sale ounce though permit even he only has never touched six states a court to con- knowing possession of a life dence of imposition sider sentence on a first thereof offender, felony punishment every person that im- each and in the automobile at found, drug time the posed on the defendant in that a mini- was N.Y. Penal 220.25(1).2 Law years mum of six to a maximum of Prior to his § life conviction appellant lawfully gainfully had been imprisonment, did not constitute cruel and employed as the owner and punishment. driver of sever- unusual prior al trucks. He had no criminal record Accepting foregoing all of the as settled other than two minor convictions more than Circuit, that, law this I am satisfied old, years driving one for reckless sentencing while the statute is not unconsti- the other petty larceny. There was no face, Carmona, tutional on supra, its that evidencе he had ever been involved in penalty years of 15 minimum to a maxi- drug participa- business other than his imprisonment mum of life is unconstitution- tion in the transaction for which he was al when to the conduct of the present case. convicted in the light lant this case. most Viewed evidence, foregoing Based on includ- State, favorable to the the evidence showed ing presumption possession, appellant old, appellant, years in 1972 then 30 guilty selling dangerous was found owner, was purchaser not the seller or degree, in the first N.Y. Penal Law the cocaine forming prose- the basis of the (now 220.43), possession 220.44 criminal § § negotiation cution. The purchase dangerous drug degree, of a in the first and sale of the cocaine had been conducted (now 220.21), Penal Law N.Y. 220.23 § § elsewhere between Kelly Michaеl and Jo- possession and criminal of a seph Veltri. Appellant played part no in it. degree, fourth N.Y. Penal Law 220.15 § Moreover, cocaine, according Kelly, (now 220.12). § brother-in-law, was owned by his who was not the appellant. When participants April On Justice Ryan, John J. negotiation had arrived at the terms of trial, presided having who at the no alterna- sale, Kelly and Veltri walked down the tive, appellant pursuant sentenced to N.Y. street to the appellant automobile which Penal Law 70.00 as a felony Class A—I steering wheel, seated behind the mandatory prison offender to a term of a whereupon Kelly directed appellant to ob- years minimum of 15 to a maximum of life tain a paper bag brown package from the imprisonment and as a lesser offender to an car, rear Aрpellant got seat. out of the up indeterminate term to seven im- opened door, around, rummaged rear prisonment. At the time of sentence found the paper package, brown which had Ryan stated: down, its top rolled it turned over to indicated, Counsel has the Court “[A]s Kelly. This was his sole participation in the very has little room for discretion in this crime. any way change case. It cannot in applies. maximum It sentence which has There was no appellant evidence that had right to sentence to a minimum sen- ever dealt in narcotics per- or that he had twenty-five tence of between fifteen and formed other role than that of an occu- Now, years. is the extent of its pant of the automobile from which the nar- minutes, 12).” (Sentencing discretion. P. cotics owned and sold pro- othеrs were duced. His may conviction be attributed to Under federal law would have a New York statutory presumption to the subject been to a maximum effect presence dangerous up years, to 15 with the U.S.C. § drug in an presumptive automobile is evi- possibility probation, plus of immediate is, 2. A presumption, (2d conviction 1978). based on purposes determining such a But for course, perfectly valid disproportion- since the whether the sentence here was ate, County Court’s recent 5-4 decision in simply Court of confirms County, Allen, Ulster strictly York v. peripheral appellant’s partici- nature of (1979), pation, 99 S.Ct. 60 L.Ed.2d possession whether it be labelled Lopez Curry, our aiding decision in abetting 583 F.2d 1188 a sale.

379 major figures negotiating were special parole fine and a term. Under New who law, hand, on the other he will York State in the case sale of the narcotics involved 1987, until when eligible parole not be for eligible parole years in six be- will be for 15-year will minimum he have served the permitted plead guilty cause were course, possibil- term. Of there remains the person to Class A—II felonies. As a result a ity might that even after 1987 he either be drug the ordinary who was not a dealer in or, released, parole placed pa- denied if term, making sense of who was not role for the rest his life. living preying upon desper- those who from 2, 1975, July Judge Ryan appel- On wrote addicts, drug ation had become and who is (Ryan) lant’s mother that if he had user, apparent not himself a has for no discretionary power to alter the sentence exposed reason logical been to a full dose of so, imposed upon appellant, he would do society’s originating wrath in its intractable 16, 1975, he September wrote to the problem my abuse. view the Clemency New York Executive Board State ‍‌‌​​‌​​‌​​​‌‌​‌‌‌​‌​​‌​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌‌‌‌​​​‍upon inflicted him is cruel and urging clemency be extended to the meaning Eighth unusual within the defendant. Amendment. Carmona, Our decision in which has been the mandatory prescribed Since upon majority relied 70.00, (now N.Y. Penal Law 220.44 §§ denying district court as the basis for 220.43) (now 220.21) my and 220.23 is in § Eighth present Amendment relief view unconstitutional is clearly distinguishable in several lant, I would remand the case with di- legally significant respects. In that case appellant, the two rections to release who very type defendants were the has now hardened against prison narcotics traffickers years, been for seven unless the whom New York’s new harsh laws were state court within 60 days resentences him directed. previously Carmona had been to a term consistent with the limitations of charges convicted of narcotics related Amendment. Eby, Mahler v. both state and federal courts. She 32, 46, 283, 68 L.Ed. U.S. S.Ct. actively engaged in the trade selling (1924). Stevenson, 43, Cf. Boles v. 379 U.S. narcotics. possessing She admitted cocaine (1964); 85 S.Ct. 13 L.Ed.2d 109 Town purpose sale, marijuana para- Sain, 293, 316, send v. 83 S.Ct. phernalia associated with drug-dealing. (1963); Teets, 9 L.Ed.2d 770 Chessman v. The defendant Fowler in pre- that case had U.S. S.Ct. L.Ed.2d viously been guilty pos- found of criminal (1957); ex rel. Parson v. hypodermic instrument, session of a crimi- Anderson, F.Supp. (D. Del.), nal drug paraphernalia, possession use of aff'd., (3d Cir.), 481 F.2d 94 dangerous drugs, prostitution, possession of 38 L.Ed.2d 479 S.Ct. instruments, stolen property forged and of petty larceny. important More for present purposes both Carmona and Fowler ,to

were plead guilty allowed to lesser of-

fenses, Carmona to a lesser Class A-II felo-

ny carrying six-year prison minimum sen-

tence and felony Fowler to a Class A-III

carrying prison a minimum sentence of one

year. Thus Carmona and Fowler would be

eligible parole years for in six year, and one

respectively.

Here in contrast will not' be

eligible parole eight at least another ironically his fellow defendants

Case Details

Case Name: Joseph Bellavia v. Walter Fogg, Warden, Green Haven Correctional Facility, Stormville, New York

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 17, 1979

Citation: 613 F.2d 369

Docket Number: 567, Docket 78-2126

Court Abbreviation: 2d Cir.