Carmona v. Ward

• Citation: 436 F. Supp. 1153
• Decision Date: 04 August 1977
• Docket Number: No. 75 Civ. 6219.,75 Civ. 6219.
• Parties: Martha CARMONA, Donna Foggie, and Roberta Fowler, Petitioners, v. 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.
• Court: U.S. District Court — Southern District of New York

436 F. Supp. 1153

Martha CARMONA, Donna Foggie, and Roberta Fowler, Petitioners, v. 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.

No. 75 Civ. 6219.

United States District Court, S. D. New York.

August 4, 1977.

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Legal Action Center of the City of New York, Inc. by Elizabeth Bartholet, Risa G. Dickstein, Mark C. Morril, New York City, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, of counsel by Arthur L. Liman, New York City, Michael C. Meltsner, New York City, of counsel; Goldman & Hafetz by Frederick P. Hafetz, New York City, for petitioners Carmona and Foggie.

Washington Square Legal Services, Inc. by E. Judson Jennings, Charles D. Terry, Peter Bickerman, Law Clerk, New York City, for petitioner Fowler.

Louis J. Lefkowitz, Atty. Gen., State of New York by Gerald J. Ryan, Asst. Atty. Gen., New York City, for respondents.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MOTLEY, District Judge.

This is a habeas corpus proceeding brought by three women¹ 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 1973,² 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.

THE PETITIONERS

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.³ The sentence is the minimum possible under the law.⁴

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 York⁵ with a mandatory sentence of at least fifteen years to life.⁶ 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.⁷ 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,⁸ 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.⁹ The sentence is the minimum possible under the law.¹⁰

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...