Opposition Brief — Carbone v. New York

7 e if t

85-2042 ©

TEC) S

FILED

| JUN 20 jon

Supreme Court of the Wnts Stade’

October Term, 19

CARL CARBONE,

Petitioner,

aganst

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

NEW YORK STATE COURT OF APPEALS

Joun J. Santucci

District Attorney

Queens County

Attorney for Respondent

125-01 Queens Boulevard

Kew Gardens, N. Y. 11415

(718) 520-5655

ALEXANDER P, SCHLINGER

Assistant District Attorney

Of Counsel

5 ad ine” hee Bo? y " : : 4 x ween. ee 23 baie

A

Question Presented

1. Was the sentence imposed upon petitioner not so

grossly disproportionate to his offense as to violate the

Eighth Amendment prohibition against eruel and unusual

punishment ?

III

TABLE OF CONTENTS

Question Presented

Table of Authorities

Statement of the Case

Statement of Facts

Point One—The petition for a writ of certiorari should

be denied

Conclusion

PAGE

TABLE OF AUTHORITIES

Cases:

Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978), cert.

den. 439 U.S. 1091 (1979)

Hutto v. Davis, 454 U.S. 370 (1982)

People v. Broadie, 37 N.Y.2d 100, 332 N.B.2d 338 cert.

den. 423 U.S. 950 (1975)

Peters v. Quick, 567 F. Supp. 331 (USDC, SDNY,

1983), aff’d 732 F.2d 142 (2d Cir. 1984)

Rummel v. Estelle, 445 U.S. 263 (1980)

Weems v. United States, 217 U.S. 349 (1910)

Statutes:

New York Penal Law, Section 70.00

New York Penal Law, Section 220.41

New York Penal Law, Section 220.43

PAGE

ihe

IN THE

Supreme Court of the United States

October Term, 1985

(CARL CARBONE,

Petitioner,

against

THE PEOPLE OF THE StTaTE OF NEw YorK,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

NEW YORK STATE COURT OF APPEALS

Statement of the Case

This brief is in opposition to petitioner’s application for

a writ of certiorari to review the order of the New York

State Court of Appeals, entered March 25, 1986, denying

without opinion the petitioner’s application for leave to

appeal from an order of the Appellate Division of the

Supreme Court of the State of New York, Seeond Judicial

Department, dated February 3, 1986, which unanimously

affirmed the petitioner’s judgment of conviction. People v.

Carbone, —— AD2d ——, 498 N.Y.S. 2d 74 (2d Dept. 1986),

lv. den. 67 N.Y.2d 881 (1986). Petitioner was convicted in

a judgment of the Supreme Court of the State of New York,

Criminal Term, Queens County, rendered July 20, 1984, of

criminal sale of a controlled substance in the second degree,

N.Y. Penal Law (220.41, and sentenced to an indeterminate

term of incarceration of six years to life imprisonment.

Statement of Facts

Petitioner was charged in an indictment with two counts

of criminal sale of a controlled substance in the first degree.

The charges arose out of two separate transactions, oceur-

ring on October 27, 1983 and November 14, 1983, respec-

tively, in which petitioner was alleged to have sold two or

more ounces of cocaine to an undercover police officer.

Petitioner was arrested following the second transaction.

On June 29, 1984, petitioner Carbone, represented by

counsel, interposed a plea of guilty to one count of a reduced

charge of criminal sale of a controlled substance in the

second degree in full satisfaction of the indictment.

On July 20, 1984, Justice Vincent Naro of the Supreme

Court of the State of New York, before whom petitioner had

entered his guilty plea, imposed upon petitioner a sentence

of six years to life imprisonment.

Following affirmance of petitioner’s judgment of convie-

tion by the Appellate Division and denial of leave to appeal

to the New York State Court of Appeals, the instant petition

for writ of certiorari ensued.

POINT ONE

The petition for a writ of certiorari should

be denied.

Petitioner frankly concedes his guilt both of the original

charges against him, two counts of criminal sale of a con-

trolled substance in the first degree (defined in pertinent

part in N.Y. Penal Law $220.43 as the sale of two or more

ounces containing a narcotic drug),' and the single lesser

charge to which he was allowed to plead guilty in full

satisfaction of all charges, criminal sale of a controlled

substance in the second degree (defined in pertinent part in

N.Y. Penal Law §220.41 as the sale of one-half ounce or more

containing a narcotic drug).* Petitioner does not challenge

or seek to overturn his conviction itself on his guilty plea.

Rather, petitioner urges that the sentence of incarceration

imposed upon him of six years to life imprisonment pur-

suant to the plea arrangement, concededly agreed to by

petitioner, petitioner’s counsel, the prosecutor and the court,

is itself violative of the prohibitica in the Eighth Amend-

ment to the United States Constitution against cruel and

unusual punishment. Petitioner’s argument is wholly with-

out merit and his petition for a writ of certiorari should

therefore be denied.

The Supreme Court of the United States has previously

rejecied the argument being made by this petitioner. Cer-

1. Criminal sale of a controlled substance in the first degree is

punishable by a maximum sentence of twenty five years to life im-

prisonment. N.Y. Penal Law §70.00.

2. Criminal sale of a controlled substance in the second degree is

punishable by a maximum sentence of eight years four months to life

imprisonment. N.Y. Penal Law §70.00.

4

trorari was denied in People v. Broadte, 37 N.Y.2d 100, 332

N.E. 2d 338, cert. den. 423 U.S. 950 (1975) wherein it was

specificaily held that a sentence of six years to life imprison-

ment, precisely the sentence of the petitioner in the instant

ease, for the ‘‘street sale’’ of cocaine, precisely the offense

committed by the petitioner in the instant case, does nof

violate the Eighth Amendment prohibition against cruel and

unusual punishment. Similarly, certiorari was also denied

by this Court in Carmona v. Ward, 576 F.2d 405 (2d Cir.

1978), cert. den. 489 U.S. 1091 (1979), wherein a sentence of

six years to life imprisonment for a class A drug felony,

the same level crime as that of which the instant petitioner

stands convicted, was held not to constitute cruel and un-

usual punishment within the meaning of the Eighth Amend-

ment. See also, Peters v. Quick, 567 F. Supp. 331 (USDC,

SDNY, 1983), aff’d 732 F.2d 142 (2d Cir. 1984) (sentence

of six years to life imprisonment for sale of cocaine held not

so grossly disproportionate to the offense as to violate

Eighth Amendment despite defendant’s personal back-

ground as a hard-working businessman and family man with

no prior criminal record).

In Hutto v. Davis, 454 U.S. 370 (1982), the Supreme

Court reaffirmed the doctrine enunciated in Rummel vy.

Estelle, 445 U.S. 263, 274 (1980) that ‘‘. . . for c:imes con-

cededly classified and classifiable as felonies ... the length

of the sentence actually imposed is purely a matter of

legislative prerogative.’’ Thus, ‘*. .. suecessful challenges

to the proportionality of particular sentences should be

‘exceedingly rare.’ ’? Hutto, 454 U.S. at 374. In accord is

Weems v. United States, 217 U.S. 349 (1910). That the

instant petition does not present such an ‘‘excvedingly

)

rare’’ case is readily apparent from a review of the facts

in Rummel and Hutio. in Rummel, the defendant was

sentenced to life imprisonment under a Texas recidivist

statute for his third felony for theft of property where the

aggregate value of the property stolen in all three crimes

totalled approximately $230. The Supreme Court held that

Rummel’s sentence was not so grossly disproportionate to

the offenses committed as to violate the Eighth Amendment

prohibition against cruel and unusual punishment. In

Hutto, the defendant's sentence of forty years imprisonment

for possession of nine ounces of marijuana was held not to

offend the Fighth Amendment. This petitioner’s case,

involving the evil, destructive and epidemic plague of nar-

cotic drug sales, with all its attendant violence and ruinous

effect on addicts, their families and the victims they so often

prey upon to acquire the funds necessary to ‘‘support their

habit,’* involves a far more serious type of crime than

either Rummel or Hutto but yet resulted in a lesser sent-

ence. Thus, by no fair or rational standard can the six

year to life sentence imposed upon the petitioner in the

instant case, notwithstanding his alleged good family back-

ground and loss of a finger in an industrial accident, be

deemed so grossly disproportionate to his crime as to

arguably constitute cruel and unusual punishment within

the meaning of the Eighth Amendment.

Accordingly, the instant petition is patently without

merit.

Conclusion

The petition for a writ of certiorari should

be denied.

Respectfully submitted,

Joun J. Santveccl

District Attorney

Queens County

Attorney for Respondent

ALEXANDER P. SCHLINGER

Assistant District Attorney

Of Counsel

June, 1986