found a gas station, filled up the gas tank, drove around again, and stopped the car to force Morelock into the backseat once again. At that point, the petitioner again raped Morelock. These offenses, despite the fact they were committed over the course of one night, do not constitute a single, continuous offense.
The courts of New York have held that multiple rapes of the same victim over a period of time constitute separate and distinct offenses and are punishable as such. See People v. Benn, 213 A.D.2d 489, 489, 623 N.Y.S.2d 634, 635 (2d Dept. 1995); People v. Barnes, 204 A.D.2d 341, 342, 611 N.Y.S.2d 608, 609 (2d Dept. 1994); People v. Brown, 66 A.D.2d 223, 226, 413 N.Y.S.2d 482, 483-84 (3rd Dept. 1979) (three rapes of a victim which took place over course of seven hours were punishable as separate and distinct offenses; consecutive sentences were imposed upon defendant); see also People v. Williams, 114 A.D.2d 683, 685, 494 N.Y.S.2d 563, 565 (3rd Dept. 1985) (trial court could impose consecutive sentences upon defendant who had raped victim twice, aided and abetted accomplice's rape of victim, and thereafter robbed victim because the various crimes arose from discrete activities in the course of a continuous criminal episode); People v. Telford, 134 A.D.2d 632, 633, 521 N.Y.S.2d 523, 524 (2d Dept. 1987) ("Although the charges...arose from one incident involving a continuous course of activity, the evidence . . . demonstrated that the defendant engaged in separate sexual acts constituting distinct offenses justifying making the sentences imposed for sodomy . . . consecutive to the sentences imposed for rape . . . and attempted rape . . .."); People v. Maxwell, 122 A.D.2d 435, 436, 504 N.Y.S.2d 832, 834 (3rd Dept. 1986) ("Defendant's crimes, attempted rape and sodomy, were discrete and separate, the former having occurred inside defendant's car and the latter outside where the victim had been dragged after successfully warding off the rape attack. Hence, consecutive sentences were not inappropriate.").
As the Appellate Division, Third Department, correctly held in this case, "Since the two acts of rape were separated by both time and location from the prior acts of sodomy and sexual abuse, they constituted separate and distinct crimes and cannot be considered as multiple prosecutions so as to raise the defense of double jeopardy." People v. Moore, 170 A.D.2d at 849, 566 N.Y.S.2d at 676. Because the consecutive sentences were imposed for separate and distinct offenses, the petitioner was not subjected to Double Jeopardy.
The petitioner, in his third ground for relief, claims that the consecutive sentences imposed upon him constitute cruel and unusual punishment in violation of the Eighth Amendment.
The Eighth Amendment, which applies against the States by virtue of the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962), provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." "The Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." United States v. Santos, 64 F.3d 41, 45 (2d Cir. 1995) (quoting Rummel v. Estelle, 445 U.S. 263, 271, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980)). Rummel has been held to stand for "the proposition that federal courts should be reluctant to review legislatively mandated terms of imprisonment, and that successful challenges to the proportionality of particular sentences should be exceedingly rare." 64 F.3d at 45 (quoting Hutto v. Davis 454 U.S. 370, 374, 70 L. Ed. 2d 556, 102 S. Ct. 703 (1982) (per curiam) (internal quotation marks and citation omitted)). "In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate." 64 F.3d at 46 (quoting Solem v. Helm, 463 U.S. 277, 290 n.16, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983)). Nevertheless, "as a matter of principle...a criminal sentence must be proportionate to the crime for which the defendant has been convicted." 64 F.3d at 46 (quoting Solem v. Helm, 463 U.S. at 290).
The petitioner was sentenced as follows:
Count One Sodomy in the First Degree: 8 to 24 years
Count Two Sexual Abuse in the First Degree: 2 to 6 years
Count Three Sexual Abuse in the First Degree: 2 to 6 years
Count Four Sodomy in the First Degree: 5 to 15 years
Count Five Rape in the First Degree: 8 1/3 to 25 years
Count Six Rape in the First Degree: 8 1/3 to 25 years
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