Petition for Writ of Certiorari — Carbone v. New York

_

Supreme Court, U.S.

FILE b

ery 1886

JR.

waacer F. SPANIOL,

sost CLERK

Supreme Court of the Uniti States |

October Term, 1985

CARL CARBONE,

Petitioner,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF

APPEALS FOR THE STATE OF NEW YORK

PETITION FOR A WRIT OF CERTIORARI

JOHN J. MAGUIRE

Counsel for Petitioner

LAW OFFICE OF RICHARD HARTMAN

252-00 Horace Harding Expressway

Little Neck, NY 11362

(718) 423-1800

QUESTION PRESENTED FOR REVIEW

Whether the New York State statute

under which Petitioner was convicted and

sentenced to a period of incarceration of

six years to life was violative of Peti-

tioner's constitutional right not to be

Subjected to cruel and unusual punishment,

under the Eighth Amendment to the United

States Constitution.

ii

LIST OF INTERESTED PARTIES

Counsel of record for CARL CARBONE

certifies that the following parties have

an interest in the outcome of this case.

1. People of the State of New York,

respresented by John J. Santucci, District

Attorney, Queens County, 125-01 Queens

Boulevard, Kew Gardens, New York 11415.

2. Solicitor General

Department of Justice

Washington D.C. 20530

3. Attorney General

State of New York

State Campus

Albany, N.Y. 12207

st ie tiicintet e

iii

TABLE OF CONTENTS

Question Presented for Review. ..

List of Interested Parties ....

Table of Authorities .......

Opinion Below .... «+. + 6 « «

We EROEBGM 6 6 5 8s 0 8 tt 8 ew

Statutory Provision Involved...

Statement of the Case ......

Reasons for Granting the Writ:

The New York State Statute under

which Petitioner was convicted

and sentenced to a period of in-

carceration of six years to life

was violative of Petitioner's

constitutional right not to be

subjected to cruel and unusual

punishment, under the Eighth

Amendment to the United States

Constitution . . « « «© © © © « «

ie. << = & 6 6 6 © & & &

SS Se ee ee ee ee ee

Appendix:

A -- Certificate Denying Leave

to the Court of Appeals . .

ii

iv

11

18

19

la

iv

B -- Order of the Supreme Court

Appellate Division, Second

Judicial Department ...... 3a

TABLE OF AUTHORITIES

CASES

Estelle v. Gamble, 429 U.S. 97

LVeerer «2 © © & 6 —

Hutto v. Finney, 437 U.S. 678

(W97SP we se sesese ene ens

People v. Broadie, 37 N.Y.2d 100

€ii2) rere ae ae ee ee ee

Weems v. United States, 217 U.S.

a | rere ae ee ee

CONSTITUTION

Sena © « «6 6+ ess 6 &

STATUTES

Penal Law §220.41 ee a a ee

28 U.S.C. SI2Z57(3) 2. « we ew wo ew

fF

18

18

16,

17

18

14,

18

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

CARL CARBONE,

Petitioner,

-against-

THE PEOPLE OF THE STATE OF NEW YORK,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Carl Carbone, prays for a

writ of certiorari to review an order of

the Court of Appeals of the State of New

York, entered in these proceedings on March

25, 1986, which denied Petitioner's motion

for a certificate granting an appeal to

said Court of Appeals, from an order of the

Supreme Court of the State of New York,

Appellate Division, Second Judicial Depart-

ment, entered in these proceedings February

3, 1986, which affirmed a judgment of the

Supreme Court of the State of New York,

Queens County, which, on July 20, 1984,

convicted him of the crime of Criminal Sale

of a Controlled Substance in the Second

Degree (New York State Penal Law §220.41)

upon his plea of guilty.

OPINION BELOW

The order of the Hon. VITO J. TITONE,

Associate Justice of the Court of Appeals

of the State of New York, denying

Petitioner's application for a certificate

permitting his appeal from the affirmance

of his conviction by the Supreme Court of

the State of New York, Second Judicial

Department, appears at page la to page 2a

of the attached Appendix. The decision has

been officially reported at 67 N.Y.2d 606

(1986).

The opinion of the Supreme Court of

the State of New York, Second Judicial

Department, affirming Petitioner's

conviction in the Supreme Court of the

State of New York, Queens County, appears

at page 3a to page 6a of the attached

Appendix. The decision has not as yet been

officially reported.

JURISDICTION

The final order of the Court of

Appeals of the State of New York in this

matter was entered on March 25, 1986.

The jurisdiction of this Court is

invoked under 28 U.S.C. §$1257(3). This

Court has jurisdiction of the controversy

because it involves a "...title, right

privilege or immunity...specially set up or

claimed under the Constitution, treaties,

statutes of, or commission held or

authority exercised under the United

States." 28 U.S.C. §1257(3).

STATUTORY PROVISION INVOLVED

Section 220.41 of the Penal Law of

the State of New York provides:

"A person is guilty of criminal sale

of a controlled substance in the second

degree when he knowingly and unlawfully

sells:

1. one or more preparations,

compounds, mixtures or substances of an

aggregate weight of one-half ounce or more

containing a narcotic drug; or

2. one of more preparations,

compounds, mixtures or substances of an

aggregate weight of one-half ounce or more

Containing methamphetamine, its salts,

isomers or salts of isomers; or

3. five grams or more of a

stimulant; or

4. five milligrams or more of

lysergic acid diethylamide; or

5. one hundred twenty-five

milligrams or more of a hallucinogen; or

6. five grams or more of a

hallucinogenic substance; or

7. three hundred and sixty

milligrams or more of methadone.

Criminal sale of a controlled

substance in the second degree is a Class

A-II felony."

STATEMENT CF THE CASE

The Grand Jury of Queens County

indicted Petitioner for two counts of

Criminal Sale of a Controlled Substance in

the First Degree (Penal Law §220.43), based

upon two alleged sales of cocaine, which

were said to have occurred on October 27,

1983 and November 14, 1983.

On October 27, 1983, Petitioner is

alleged to have sole to a New York City

Police Department Narcotics Division under-

cover officer approximately four ounces of

cocaine in exchange for $7,500.00. The

location of the alleged transaction,

according to police, was a parking lot near

the Whitestone Expressway and Linden Place

in Queens.

On November 14, 1983, Petitioner is

alleged to have sold to the same Narcotics

Division undercover officer approximately

eight ounces of cocaine in exchange for

$13,000.00 at the same location in Queens.

On this occasion, members of the Narcotics

Division placed Petitioner under arrest.

After being duly arraigned, plea

negotiations between counsel for Petitioner

and the District Attorney's office ensued.

The District Attorney's office insisted

that the only appropriate disposition short

of trial was a plea of guilty to Criminal

Sale of a Controlled Substance in the

Second Degree with the imposition of a six

year minimum period of incarceration. Try

though he might, counsel for Petitioner was

unable to convince the District Attorney's

office to reduce the minimum iikeeration.

Ultimately, recognizing that the

likelihood of acquittal after trial was

extremely small, Petitioner entered a plea

of guilty to the Class A-II felony, with

the promised proposed sentence, on June 29,

1984. The matter was adjourned for

sentencing and a probation report was duly

prepared by the Department of Probation.

On July 20, 1984, Petitioner was

sentenced. At the proceedings, counsel for

Petitioner requested the Court intercede in

the proceedings and reduce the minimum

period of incarceration to be imposed upon

Petitioner from six years to three years.

Counsel for Petitioner pointed to the fact

Petitioner received extensive support from

his family, that he was newly married and

that his wife was expecting a child.

Counsel also acknowleged that the

matter was before the Court under a

negotiated plea of guilty, but that counsel

believed that the Court ought reconsider

the negotiated plea and be as lenient as

possible in pronouncing sentence upon

Petitioner. Counsel pointed out that as

far as the law was concerned, there was

little difference between a six year or a

three year incarceration but that to

Petitioner the imposition of a full six

year minimum term as opposed to a reduced

three year eavind would be of significant

impact in destroying prospects for his

eventual rehabilitation.

Petitioner, at sentence, told the

Court that he was sorry for what he had

done and "was willing to pay [his] price."

However, Petitioner thought that the six

year period of incarceration was unduly

harsh and joined his counsel in requesting

the Court to intercede on Petitioner's

behalf.

The Court below, stated that it was

adhering to the recommendation of the

10

District Attorney's office, in spite of the

requests by Petitioner and his counsel.

The Petitioner was then sentenced by the

Court to six years to life.

Petitioner appealed the decision to

the Supreme Court of the State of New York,

Appellate Division, Second Judicial

Department. After the filing of briefs and

hearing of oral argument, the Appellate

Division unanimously affirmed the lower

Court. (See Appendix B.)

A motion for leave to appeal to the

Court of Appeals of the State of New York

was duly made by Petitioner. The Court of

Appeals denied the Motion on March 25,

1986. (See Appendix A.)

The instant petition for a writ of

certiorari ensued,

11

REASONS FOR GRANTING WRIT OF CERTIORARI

THE NEW YORK STATE STATUTE UNDER

WHICH PETITIONER WAS CONVICTED

AND SENTENCED TO A PERIOD OF IN-

CARCERATION OF SIX YEARS TO LIFE

WAS VIOLATIVE OF PETITIONER'S

CONSTITUTIONAL RIGHT NOT TO BE

SUBJECTED TO CRUEL AND UNUSUAL

PUNISHMENT, UNDER THE EIGHTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION,

Petitioner entered the plea of guilty

to Criminal Sale of a Controlled Substance

in the Second Degree to one count in the

indictment in satisfaction of the entire

indictment, because he was factually guilty

of the offenses described there. Peti-

tioner admitted his guilt with candor.

12

Petitioner also stood prepared to accept

and serve the sentence ultimately imposed

upon him.

However, it is submitted that,

under the circumstances present, the

interest of justice would not be served by

such a harsh sentence, with its extensive

minimum period of incarceration.

Petitioner acted perhaps out of immaturity

or a lack of judgment. However, certain

factors such as the fact that he admitted

his guilt, his general background of strong

family support, his disability, and

indications that he was not a major dealer

of narcotics, give support to his

contention on appeal that, as to him, a

sentence of incarceration is inappropriate

to the point of being unconstitutional.

The probation report indicated that

Petitioner came from a strong and loving

13

family background. It would appear that

Petitioner fell into bad company, which

unduly negatively influenced him.

Certainly, the amputation of his left

index finger in an industrial accident with

its resultant severe disabling features was

yet another factor which had a negative

influence upon Petitioner. The monetary

settlement, although quite large, can never

really make up the loss of the finger.

As the Courts of the State of New

York have declined to grant Petitioner the

relief he requested, Petitioner turns to

this Court and asks that his present

application be granted, as he submits that

the imposition of the lengthy sentence of

incarceration constitutes cruel and unusual

punishment under the Eighth Amendment to

the United States Constitution.

14

Recognizing that various parts of the

State of New York faced, and still continue

to face, a very serious law enforcement

problem in the area of narcotics control,

in September, 1973, the Legislature of the

State passed a series of drug laws which

were, at the time of passage, the most

severe laws of this type in the United

States. Although the laws were somewhat

modified in 1979, it would be fair to state

that the New York drug laws are the most

severe such statutes in the nation.

Their constitutionality with respect

to the Eighth Amendment were upheld in

People v. Brodie, 37 N.Y.2d 100 (1975). It

should be noted that the appellant in

Broadie sought further review in this Court

but his petition for certiorari was denied.

Broadie v. New York, 423 U.S. 950 (1975).

15

Generally, in its decision in

Broadie, the New York State Court of

Appeals held that sentences under the

narcotics section, Article 220 of the Penal

Law of the State of New York, were not

grossly disporportionate under constitu-

tional analysis, because the Legislature of

the State had the power to distinguish

among the ills of society which require

criminal sanction and prescribe appropriate

punishment. The State Legislature had the

power to make a finding that unlawful sales

of narcotics were symptoms of a widespread

and dangerous phenomenom. The Legislature

was entitled to classify sales of certain

narcotics as being equivalent to the most

violent of crimes.

In the case, the Court of Appeals

analyzed the circumstances of each of eight

defendants, before the Court, who had been

16

sentenced under Article 220. It was found

that in each case, the defendants had been

previously convicted of at least street

sales of heroin or cocaine or had been

found in possession of large amounts of

narcotics.

However, in dicta, the Court stated

that in certain rare cases upon particular

facts, imposition an A felony type of

sentence under the statute might constitute

an unconstitutional sentence.

Here, it is submitted that an

analysis of the factual background leads to

the conclusion that the imposition of a

sentence of incarceration for from six

years to life is harsh and excessive to the

point of being unconstitutional as applied

to Petitioner. It is, in short, a

Candidate for the rare case referred to in

Broadie.

_ ST A A li in 3

17

Petitioner suggests that the sentence

imposed upon him constituted an Eighth

Amendment violation of his rights. See

Hutto v. Finney, 437 U.S. 678 (1978);

Estelle v. Gamble, 429 U.S. 97 (1978);

Weems v. United States, 217 U.S. 349

(1910).

18

CONCLUSION

For the reasons stated above, it is

respectfully requested that the petition

for a writ of certiorari be granted.

Respectfully submitted,

JOHN J. MAGUIRE

Counsel for Petitioner

LAW OFFICE OF RICHARD HARTMAN

252-00 Horace Harding Expressway

Little Neck, New York 11362

(178) 423-1800

L9

CERTIFICATE

John J. Maguire hereby certifies that

he is a member of the bar of the Supreme

Court of the United States and states that

three copies of the Petition for a Write of

Certiorari to the Court of Appeals of the

State of New York were mailed by postpaid

First Class Mail to the following:

1. John J. Santucci, Esq.

District Attorney, Queens County

125-01 Queens Boulevard

Kew Gardens, N.Y. 11415

2. Solicitor General

Department of Justice

Washington, D.C. 20530

3. Attorney General

State of New York

State Campus

Albany, N.Y. 12207

by depositing same in a United States Post

Office with first class postage prepaid and

that forty copies were deposited in a

United States Post Office with first class

postage prepaid and properly addressed to

The Clerk of the Supreme Court of the

United States, Supreme Court Building, One

First Street, N.E. Washington, D.C. 20543.

JOHN J. MAGUIRE

Sworn to before me

this //¥- = day of

June, 1986

Roland W. Johnson

Notary Public, State of New York

No. 4502705

Qualified in Delaware County

Commission Expires March 30, 1987

la

APPENDIX A

STATE OF NEW YORK

COURT OF APPEALS

BEFORE: HON. VITO J. TITONE Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK

Respondent

against

CAR CARBONE,

Appellant.

I, VITO J. TITONE, Associate Judge of

the Court of Appeals of the State of New

York, do hereby certify that, upon applica-

tion timely made by the above-named

appellant for a certificate pursuant to CPL

460.20 and upon the record and proceedings

herein,* there is no question of law

presented which ought to be reviewed by the

Court of Appeals and permission to appeal

is hereby denied.

Dated at Albany, New York

March 25, 1986

/s/

Associate Judge

2a

Appendix A

*Description of Order:

Order of the Appellate Division, Second

Department dated February 3, 1986,

affirming a judgment of Supreme Court,

Queens County, rendered July 20, 1984.

3a

APPENDIX B

Order of the Supreme Court, Appellate

Division, Second Judicial Department

At a Term of the Appellate

Division of the Supreme

Court of the State of New

York, Second Judicial

Department, held in Kings

County on February 3, 1986.

HON. LEON D. LAZER, Justice Presiding,

HON. GUY J. MANGANO, )

HON. RICHARD A. BROWN, ) Associate Justices

HON. SYBIL HART KOOPER )

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

CARL CARBONE,

Appellant.

In the above entitled action, the

above named Carl Carbone, defendant in this

action, having appealed to this court from

a judgment of the Supreme Court, Queens

County, rendered July 20, 1984, convicting

him of criminal sale of a controlled

substance in the second degree, upon his

plea of guilty, and sentencing him to an

indeterminate term of six years to life

4a

Appendix B

imprisonment; and the said appeal having

been argued by Raymond E. Kerno, Esq., of

counsel for the appellant and submitted by

Alexander P. Schlinger, Esq., of counsel

for the respondent, and due deliberation

having been had thereof; and upon this

court's opinion and decision slip hereto-

fore filed and made a part hereof, it is:

ORDERED that the judgment appealed

from is hereby unanimously affirmed.

ENTER

IRVING N. SELKIN

Clerk of the Appellate Division

5a

Appendix B

2768}

Z/jc

LEON D. LAZER, J.P.

GUY J. MANGANO

RICHARD A. BROWN

SYBIL HART KOOPER, JJ.

AD2d A- December 16, 1985

3076 E The People, etc., respondent,

v. Carl Carbone, appellant.

(Ind. No. 4121/83)

Richard Hartman, Little Neck, N.Y.

(Raymond E. Kerno of counsel), for

appellant.

John J. Santucci, District Attorney,

Kew Gardens, N.Y. (Alexander P.

Schlinger of counsel), for respondent.

Appeal by defendant from a judgment

of the Supreme Court, Queens County (Naro,

J.), rendered July 20, 1984, convicting him

of criminal sale of a controlled substance

in the second degree, upon his plea of

guilty, and sentencing him to an indetermi-

nate term of six years to life imprisonment.

Judgment affirmed.

The sentence imposed upon defendant

was within the statutory limits and those

limits were not unconstitutionally

excessive as applied to this defendant

(see, People v. Broadie, 37 NY2d 100, cert

denied 423 US 950).

6a

Appendix B

Defendant knowingly, freely and

voluntarily pleaded guilty to the charged

offense and has no basis now to complain

that the sentence was excessive. Defendant

received precisely the sentence he

bargained for (see, People v. Kazepis, 101

A.2d 816).

LAZER, J.P., MANGANO, BROWN and KOOPER, JJ.

concur.

February 3, 1986 PEOPLE V. CARBONE, CARL

3076 E