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August 5, 1977

BENJAMIN WARD, Commissioner of the New York State Department of Correctional Services; FRANCES CLEMENT, Superintendent, Bedford Hills Correctional Facility, Bedford Hills, New York; EDWARD HAMMOCK, Chairman of the New York State Board of Parole; and the NEW YORK STATE BOARD OF PAROLE, Respondents

The opinion of the court was delivered by: MOTLEY



 This is a habeas corpus proceeding brought by three women *fn1" challenging the constitutionality of their confinement pursuant to judgments of conviction in the New York courts. Specifically, they attack, root and branch, the constitutionality of certain sections of the New York Penal Law, Criminal Procedure Law, and Correction Law, as amended in 1973, *fn2" which govern the treatment of class A felony drug offenders, and pursuant to which they have been sentenced. The court finds it unnecessary, for reasons set forth infra, to discuss all the arguments which they raise. The court holds that Ms. Carmona's and Ms. Fowler's sentences are so disproportionately severe in relation to the gravity of the offenses charged as to constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. However, the court finds no constitutional infirmity in Ms. Foggie's conviction and sentence.


 Petitioner Martha Carmona is presently serving a sentence of six years to life imprisonment for the crime of criminal possession of a controlled substance in the second degree, to wit, possession of more than one ounce of cocaine, an A-II felony under the 1973 drug law. *fn3" The sentence is the minimum possible under the law. *fn4"

 Ms. Carmona is a forty-one year old woman who, though born in Puerto Rico, has lived in New York City since early childhood. As a child, she was given by her married parents to an aunt, who emigrated to New York and raised her in that city. In 1953, she dropped out of high school, assertedly in order to earn money to send to her parents in Puerto Rico. After dropping out of school, she had worked from 1960 to 1973 as a sewing machine operator for a garment manufacturer, and from 1973 until her arrest in 1974, she worked part time for a beauty salon in Manhattan. Though presently unmarried (she was married at age 18 and divorced a year later), she has a daughter approximately twenty-one years old whom she was supporting until her arrest on the instant charges in 1974. The daughter subsequently had to resort to public assistance.

 Prior to the events which gave rise to the instant charges, Ms. Carmona had never been convicted of a crime and had only once been arrested -- in 1956 -- when a dispute with a neighbor resulted in the arrest of all parties on assault charges which were ultimately dismissed.

 In 1974, Ms. Carmona was arrested on a series of drug-related charges although she herself was not an addict. In May, she was indicted on federal charges of conspiracy and two substantive counts of possession of cocaine with intent to distribute it. The charges were ultimately satisfied by a guilty plea to one substantive count. On August 13, 1974, Ms. Carmona was indicted by a state grand jury in Bronx County on charges based upon the results of a search of her apartment conducted on July 30, 1974. The indictment charged her with violation of several penal statutes due to her alleged possession of items of drug paraphernalia, a small quantity of marijuana, and 3 and 3/8 ounces of cocaine, the latter offense (criminal possession of a controlled substance in the first degree) constituting an A-I felony in New York *fn5" with a mandatory sentence of at least fifteen years to life. *fn6" At the time of her arrest, she made a recorded statement to the Assistant District Attorney in charge of the case admitting possession of the cocaine which she had been given by another man on consignment for future sale. Ms. Carmona had earlier in 1974 been charged in two state indictments which, together, alleged that she had sold some 7 and 7/8 ounces of heroin to undercover agents.

 On several occasions after her arrest, Ms. Carmona indicated to police and prosecutorial officials that she wished to cooperate with them by supplying information and thereby becoming eligible for the District Attorney's recommendation that she be placed on lifetime probation, rather than facing the harsh penalties attendant to the offenses for which she was charged. *fn7" However, all the information which she provided the authorities was already known to them and, therefore, of little utility. When she was asked to introduce an undercover agent to her source of narcotic supply, she declined to do so on the ground that she feared for the physical safety of herself and her daughter. Because of her failure to provide any material assistance to the District Attorney's office, Ms. Carmona was not considered an appropriate subject for the probation recommendation. In consequence, after consultation with retained counsel, she accepted an offer to plead guilty to the A-II charge of possession of a controlled substance (cocaine) in the second degree, in satisfaction of all the outstanding charges against her. On January 31, 1975, her plea was accepted by Justice Joseph Cohen of the Supreme Court, Bronx County and, on March 10, 1975, she was sentenced to the term of imprisonment previously set forth. Her appeal was denied by the Appellate Division, First Department in late 1976, and leave to appeal to the New York Court of Appeals was denied. She is presently incarcerated in the Bedford Hills Correctional Facility, of which respondent Frances Clement is Superintendent.

 Petitioner Donna Foggie is presently on mandatory lifetime parole, *fn8" having been discharged from incarceration after serving roughly one year of a one year to life sentence for the crime of criminal possession of a controlled substance in the third degree, to wit, sale of 18 grains ($40.00 worth) of cocaine, an A-III felony under the 1973 drug law. *fn9" The sentence is the minimum possible under the law. *fn10"

 Ms. Foggie is a twenty-five year old woman born and raised in New York City. After her parents separated when she was three years old, she was raised by her mother, with whom she maintains a close relationship. She also remains close to her brother, who is a Sergeant in the Air Force. She dropped out of high school in Brooklyn during her tenth grade, and soon thereafter was married in 1969. Although she was separated from her husband in 1970, she retained custody of their child, a son who is now about eight years old. After leaving high school she held a number of jobs for short periods of time. However, from 1970 until the time of her arrest, she was receiving public assistance.

 Ms. Foggie first became a heroin addict at the age of 15, and used heroin intermittently subsequent to that time. On August 20, 1970, she voluntarily committed herself to a drug treatment program at the Drug Abuse Service Bushwick Center in Brooklyn. She was discharged from the program on July 24, 1974, having reported regularly while on after-care treatment and having made a "satisfactory adjustment". After her discharge from the program, she continued her rehabilitation therapy in two other methadone programs.

 Prior to 1974, Ms. Foggie had never been convicted of a criminal offense. In February of 1970, she had been arrested and charged with possession of a dangerous drug in the sixth degree and petit larceny; however, those charges were dismissed in Kings County Criminal Court in 1971.

 On August 8, 1974, Ms. Foggie was arrested. An indictment was filed on August 16, 1974 charging her with two counts of criminal sale of a controlled substance in the third degree, two counts of possession of a controlled substance in the third degree, and two counts of possession of a controlled substance in the seventh degree. The charges arose from two separate events: a sale of $50 worth of a substance containing cocaine on or about May 8, 1974, and a sale of $40 worth (18 grains) of a substance containing cocaine on or about May 17, 1974, on each occasion to an undercover agent. The charges resulting from the May 8, 1974 transaction were dismissed by the court upon the prosecutor's refusal to produce the informant who introduced Ms. Foggie to the undercover officer to whom she allegedly made the sale. After a jury trial before Justice Eugene R. Canudo of Supreme Court, Kings County, she was convicted on one count of the indictment, which charged her with the sale occurring on May 17, 1974. On April 28, 1975, she was sentenced to a term of one year to life by Judge Canudo, who indicated that his sentence, the most lenient permitted by the 1973 drug law, was in accordance with both the contents of the probation report and the recommendation of the Assistant District Attorney in charge of the case. Her appeal, alleging a number of trial errors, was denied by the Appellate Division, Second Department, on June 3, 1977, some time after she had already been released on lifetime parole.

 Petitioner-intervenor Roberta Fowler is presently serving a sentence of four years to life imprisonment in Bedford Hills Correctional Facility for the crime of criminal sale of a controlled substance in the third degree, *fn11" to wit, approximately one individual dose of a substance containing cocaine.

 Ms. Fowler, now approximately twenty-three years old, had spent her entire life prior to her arrest in Albany and Sidney Center, New York. Her mother died while she was a teenager, and she received psychiatric counseling for some time thereafter. She completed eleven years of school and, while in prison, has since taken the high school equivalency examination. She has, for varying periods of time, been employed by the New York State Department of Labor, the Eden Park Nursing Home, and the New York Telephone Company. In 1969, she was married to Billie Fowler, and she now has two children who, during her incarceration, reside with her father in Albany. Since her imprisonment for the instant offense, she has apparently made diligent efforts to maintain close contact with her children. On her initiative, both nuns and guidance counselors from the day care center which her children attend have come to Bedford Hills to discuss the children's progress with her. The children have visited her relatively frequently.

 The offense for which Ms. Fowler is incarcerated occurred on September 25, 1973. At trial, the Government established that, on that date, one James Werthmuller, an undercover agent, observed the petitioner at an Albany police station, asked her whether she could get him twenty dollars worth of cocaine, and then gave her twenty dollars. Ms. Fowler then left in a car with one Jerome Powell, a Government informer. Some twenty minutes later, the three individuals met again by pre-arrangement at a different location, at which point petitioner handed the substance containing cocaine to Powell, who, in turn, handed it to Werthmuller.

 After a jury trial *fn12" in February, 1974, Ms. Fowler was sentenced, on February 21, 1974, to a term of four years to life, the court exercising its discretion to set a minimum term of from one year to eight years and four months. At the time of sentence, Ms. Fowler, then twenty years of age, had no previous record of violent behavior or of criminal possession or sale of narcotics, although she was not a stranger to the criminal justice system. *fn13" During 1972, she had sought and obtained treatment at a methadone clinic in Albany, but, at the time of her arrest, she was not addicted to any narcotic drug. Her conviction was appealed through the State court system, and was affirmed by the New York Court of Appeals sub nom. People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S. Ct. 372, 46 L. Ed. 2d 287 (1975).


 The State argues at the outset that the claims raised by these petitioners have not been adequately presented to the New York courts to satisfy the exhaustion requirement embodied in 28 U.S.C. ยง 2254(b). Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1972). At least with regard to the grounds upon which it rests its decision, the court does not find this argument well taken.

 The court here holds that, as applied to Ms. Carmona and Ms. Fowler and their offenses, certain provisions of the 1973 drug law are so disproportionately severe as to constitute cruel and unusual punishment. It is clear that the New York Court of Appeals, in upholding the constitutionality of the 1973 drug law, considered challenges to its validity under the Cruel and Unusual Punishments Clauses of both the New York and United States Constitutions. Broadie, supra, 371 N.Y.S.2d at 474. While the Court did not deal in depth with the personal backgrounds of the appellants or with the specific circumstances of the offenses there charged, a fair reading of the Court's opinion indicates that the Court of Appeals rejected the argument that the statutory punishments were constitutionally defective, either on their face or as applied. See especially Broadie, supra, at 475, 477, 482.

 Chief Judge Breitel took pains to note that the Court's opinion did not imply that "in some rare case on its particular facts it may not be found that the statutes have been unconstitutionally applied." Broadie at 482. However, his citation to Justice Powell's dissenting opinion in Furman v. Georgia, 408 U.S. 238, 460-1, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) seems to make clear that the exception, in which application might be unconstitutional, contemplated circumstances in which the alleged crime "technically (fell) within the legislatively defined class but factually (fell) outside the likely legislative intent in creating the category." 408 U.S. at 461. The Court was concerned with the possible "accidental offender", not with a situation in which application of the statutory penalties to an offense concededly falling within the statutory definition merely created a disproportionately severe punishment. *fn14" Accordingly, it seems clear that Broadie rejected the argument that the 1973 drug law provisions constituted cruel and unusual punishment, both by their terms and as applied to factual patterns clearly encompassed by the Legislature's intent. It is also clear that the Broadie court rejected the Equal Protection challenge as well. 371 N.Y.S.2d at 475.

 Since Ms. Fowler's conviction was one of the cases affirmed by the Broadie opinion, it is obvious that she has exhausted her available state remedies. Moreover, since it also seems clear that it would be completely futile for either Ms. Carmona or Ms. Foggie to pursue the same claims on direct appeal in the state courts, they need not do so before seeking relief in this court. *fn15" United States ex rel. ...

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