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January 22, 1982

Felice CASSESSE, Petitioner,

The opinion of the court was delivered by: NICKERSON


Felice Cassesse seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted on March 19, 1980 in the Supreme Court of New York, Criminal Term, Queens County, of criminal possession of a weapon in the third degree and criminal possession of a weapon in the fourth degree. He was sentenced as a predicate felon to a term of two to four years on the former charge and one year on the latter, the sentences to run concurrently. The Appellate Division modified the judgment by reversing the conviction and sentence on the latter charge but otherwise affirmed. Leave to appeal to the New York Court of Appeals was denied. The United States Supreme Court denied certiorari.

 Criminal possession of a weapon by a first offender is a class A misdemeanor, carrying a maximum sentence of one year in jail. See New York Penal Law §§ 265.01 and 70.15. However, because petitioner had been previously (in 1973) convicted of a felony, under New York Penal Law §§ 265.02(1) and (4), and 70.00, the class A misdemeanor was raised to a class D felony, carrying a maximum sentence of 7 years imprisonment. Petitioner therefore stood convicted of two felonies within one ten year period and was sentenced as a second felony offender pursuant to New York Penal Law § 70.06.

 Petitioner claims that by elevating the misdemeanor to a felony, and then permitting a sentence as a second felony offender, the New York statutes deprive him of due process of law and violate the constitutional prohibitions against double jeopardy and cruel and unusual punishment.

 The state claims that petitioner has failed to exhaust his state court remedies, citing, among other cases, Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979) and Gayle v. LeFevre, 613 F.2d 21 (2d Cir. 1980). In those decisions the Court of Appeals for the Second Circuit held that the mere contention by a defendant in the state courts that he had been denied a "fair trial" by the conduct of the trial judge was insufficient to alert the state courts to consider whether such conduct violated "fundamental rights guaranteed by the federal Constitution." Johnson v. Metz, supra at 1054 (emphasis in original). See also Daye v. Attorney General, 663 F.2d 1155 (2d Cir. 1981).

 In the present case petitioner's brief in the Appellate Division, while it did not cite the federal Constitution or federal cases, urged that "the sentence imposed cruel and unusual punishment and violates due process of law." The New York State Constitution provides that no person shall be subjected to "cruel and unusual punishments" or deprived of liberty "without due process of law." Art. 1, §§ 5, 6. However, it would be an unusual state court judge who would be unaware that the federal Constitution contained substantially identical provisions. The Appellate Division undoubtedly understood from the brief that interests protected by the Fourteenth Amendment to the United States Constitution were at stake. This court does not read the Second Circuit opinions to require more. Certainly if use in the state courts of the words "effective assistance of counsel," without citation to the United States Constitution or federal authorities, was enough to show exhaustion as to a Sixth Amendment claim, Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979), the language in petitioner's brief in the Appellate Division was sufficient to raise the contentions he presents here.

 That the Appellate Division understood that petitioner was urging federal constitutional claims is confirmed by the fact that the state in opposing the petition for certiorari failed to urge that the United States Supreme Court lacked jurisdiction because the federal issues had not been raised below. The brief in opposition addressed only the merits.

 In any event on the merits the petition is insufficient. The punishment imposed, two to four years, was certainly not cruel and unusual under the recent decisions of the United States Supreme Court. Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980); Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982). Nor do the pertinent provisions of the New York Penal Law violate petitioner's right to due process or place him in double jeopardy. The Supreme Court has frequently sustained laws for enhanced sentences against such contentions. Spencer v. Texas, 385 U.S. 554, 560, 87 S. Ct. 648, 651, 17 L. Ed. 2d 606 (1967), and cases cited.

 The degree of enhancement conceivably could be so grossly disproportionate as to raise questions under the Eighth Amendment. But it is hardly irrational to impose a heavier punishment for an offense aggravated by repetitious criminal conduct. See, e.g., Moore v. Missouri, 159 U.S. 673, 16 S. Ct. 179, 40 L. Ed. 301 (1895). In making a choice of deterrents the New York legislature could rationally decide that weapons in the hands of previously convicted felons pose an even greater threat than weapons in the hands of convicted misdemeanants.

 The petition is denied. So ordered.


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