Bellavia v. Fogg

• Citation: 613 F.2d 369
• Decision Date: 17 December 1979
• Docket Number: D,No. 567,567
• Parties: Joseph BELLAVIA, Petitioner-Appellant, v. Walter FOGG, Warden, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee. ocket 78-2126.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 369

613 F.2d 369

Joseph BELLAVIA, Petitioner-Appellant, v. Walter FOGG, Warden, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee.

No. 567, Docket 78-2126.

United States Court of Appeals,

Second Circuit.

Argued Feb. 5, 1979.

Decided Dec. 17, 1979.

Domenick J. Porco, New York City (Diller, Schmukler & Asness, New York City, on the brief), for petitioner-appellant.

Allan S. Moller, Asst. Atty. Gen., State of New York, New York City (Robert Abrams, Atty. Gen., and George D. Zuckerman, Asst. Solicitor Gen., New York City, on the brief), for respondent-appellee.

Before WATERMAN, MANSFIELD and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

On this appeal from a judgment entered in the Eastern District of New York, Charles P. Sifton, District Judge, which denied a state prisoner's petition for a writ of habeas corpus, appellant challenges the constitutionality of his state court conviction for possession and sale of cocaine on three grounds: (1) that New York's statutory presumption that the occupants of a motor vehicle which contains narcotic drugs are all knowing possessors of the drugs, N.Y. Penal Law § 220.25(1) (McKinney Supp. 1978-79), denied him due process and the equal protection of the law; (2) that his mandatory net sentence of fifteen years to life imprisonment imposed under N.Y. Penal Law §§ 70.00(2)(a) and 3(a) (McKinney 1975), constituted cruel and unusual punishment and (3) that he was denied the effective assistance of counsel at his trial.

For the reasons below, we agree with the district court's rejection of each of appellant's claims. We affirm.

I.

Appellant Joseph Bellavia and his co-defendants, Michael Kelly and Joseph Veltri, were arrested by undercover New York City police officers in Brooklyn on September 7, 1972. Immediately prior to the arrests, the three were about to conclude the sale of 31 ounces of cocaine to undercover officer Nicholas Molfetta. Undercover officers had been negotiating with Kelly and Veltri for this purchase of cocaine since August 21. Originally scheduled for midnight of September 6, the transaction was postponed to the afternoon of September 7, and then was delayed another five hours by Kelly's late arrival at the Brooklyn bar which had been chosen for the rendezvous. Increasingly anxious telephone conversations, on the one hand, between Veltri and the undercover officers waiting in the bar, and, on the other hand, between Kelly and Veltri, established that Kelly had the cocaine but was waiting for delivery of some heroin which the undercover officers also wished to buy. ¹ Veltri explained to Molfetta that the reason for the delay was "that it's not his (Kelly's) stuff."

Kelly finally arrived at the bar shortly before 9 p. m. on September 7. In response to a question from Molfetta, Kelly said that the drugs were with his brother-in-law "in the car." He stepped outside to get a sample of the cocaine. He gave it to Molfetta who pretended to "snort" it in the lavatory of the bar. Molfetta pronounced it satisfactory. Kelly, Veltri and Molfetta then left the bar, walked a short distance, and came to a parked car in which Bellavia was seated behind the wheel.

Kelly asked Bellavia for a package. Bellavia slid across to the passenger's side, got out, and searched briefly in the back seat of the car. He promptly removed a rolled-up brown paper bag, about ten inches high, and handed it to Kelly. Kelly gave it to Molfetta and said, "Here's your stuff." Molfetta again pretended to test the contents. He then called in his back-up units. Kelly, Veltri and Bellavia were arrested. Later tests confirmed that the rolled-up bag contained 31 ounces of cocaine.

Bellavia, Kelly and Veltri were indicted in the Supreme Court, Kings County, on three counts: (1) criminal sale of dangerous drugs in the first degree, (2) criminal possession of dangerous drugs in the fourth degree, and (3) criminal possession of dangerous drugs in the first degree. The three defendants were convicted on each of the three counts after a jury trial before Honorable John J. Ryan.

At the trial, Bellavia did not take the stand in his own defense. Throughout the trial, his attorney, Solon Hanft, Esq., adopted what Justice Ryan referred to as "a very low profile". He allowed counsel for the other defendants, as Judge Sifton put it, "to carry the laboring oar." By such trial strategy, he hoped to emphasize the minimal role his client had played in the drug deal.

In accordance with New York law, Justice Ryan charged the jury that the evidence of Bellavia's presence in the car containing cocaine permitted them to infer that he had possession of the cocaine, but that they were not required to do so. The judge further charged the jury that, in the light of the evidence introduced by the defendants, or because of silence on the part of the defendants, they could refuse to draw the inference of possession which the presumption permitted. The State relied solely on the presumption for its case against Bellavia.

After the return of the guilty verdicts. Bellavia was sentenced on April 4, 1973 to concurrent terms of 15 years to life on the first count, a maximum of 7 years on the second count, and 15 years to life on the third count.

Bellavia appealed his conviction to the Appellate Division, Second Department. He claimed as error that there was insufficient evidence to support his conviction, that the prosecutor's summation denied him a fair trial, that Justice Ryan's limitation of direct examination of one witness was an abuse of discretion, and that he had been denied equal protection of the law because the New York statute classifying the seriousness of drug offenses by the amount of drug involved did not allow for the purity of the contraband substance. His conviction was unanimously affirmed without opinion. People v. Bellavia, 45 A.D.2d 934, 358 N.Y.S.2d 959 (2d Dept. 1974). Leave to appeal to the Court of Appeals was denied September 4, 1974.

On May 8, 1975, Bellavia filed with Justice Ryan a coram nobis petition under N.Y. Crim. Proc. Law §§ 440.10 and 440.20 (McKinney 1971), seeking to have his conviction and sentence vacated on the ground that his constitutional rights had been infringed. Seven claims were asserted in the petition, including claims of ineffective assistance of counsel, the unconstitutionality of the drug presumption statute, and cruel and unusual punishment. ² The coram nobis petition was denied July 1, 1975. Leave to appeal to the Appellate Division was denied May 13, 1976.

On January 5, 1977, Bellavia commenced the instant habeas corpus proceeding in the Eastern District of New York. After some preliminary matters were handled by Judge Sifton, he filed a well reasoned opinion on June 5, 1978 ruling upon each of the three claims set forth at the beginning of this opinion. From the judgment entered on Judge Sifton's opinion denying the petition for a writ of habeas corpus, this appeal has been taken.

III.

In the light of these facts and prior proceedings, ³ we turn first to appellant's claim ⁴ that he was denied due process and the equal protection of the law by the New York statutory presumption that the occupants of a motor vehicle which contains narcotic drugs are all knowing possessors of the drugs. N.Y. Penal Law § 220.25(1) (McKinney Supp. 1978-79). ⁵

We need hardly look further than Chief Judge Kaufman's opinion of last Term in Lopez ex rel. Garcia v. Curry, 583 F.2d 1188 (2 Cir. 1978), to sustain the constitutionality of § 220.25(1) as applied to Bellavia. Here, as in Lopez, "dealership quantities" of drugs were involved. Judge Kaufman's conclusion in Lopez is equally applicable here:

"The Legislature therefore had justification to find that those discovered in an automobile with dealership quantities of controlled substances are more likely than not to have knowing possession of the drugs. Accordingly, we hold § 220.25(1) to be constitutional as applied to such large quantities of narcotics." 583 F.2d at 1192 (footnote omitted).

Moreover, the New York Court of Appeals upheld the constitutionality of § 220.25(1) as applied in the very case out of which the Lopez habeas case arose. People v. Leyva, 38 N.Y.2d 160, 341 N.E.2d 546, 370 N.Y.S.2d 30 (1975). We agree with the conclusion reached by Judge Sifton below in following the reasoning of the New York Court of Appeals in People v. Leyva, supra :

"Petitioner's final argument is that the statutory presumption contained in N.Y. Penal Law (§ 220.25) is unconstitutional. For the reasons set forth in Leyva v. Superintendent, 428 F.Supp. 1 (E.D.N.Y. 1977) (Vacated and remanded, 573 F.2d 1292 (2 Cir. 1978)) and People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30 (1975), this Court concludes that the presumption is not unconstitutional as applied to the facts of this case involving a significant quantity of cocaine and that any failure by the trial court to limit the statute to situations where large quantities of drugs were involved was harmless in view of the fact that a large quantity of cocaine was all that was at issue here." (citations omitted).

Finally, as recently as this past Term the Supreme Court in unmistakable language upheld as applied the constitutionality of a nearly identical New York statute, N.Y. Penal Law § 265.15(3) (McKinney Supp. 1976-77), which makes presence in an automobile of a firearm presumptive evidence of its possession by all persons occupying the automobile. County Court of Ulster County, New York v. Allen, 442 U.S. 140 (1979), Rev'g 568 F.2d 998 (2 Cir. 1977). The Court in Allen held that it was error to "pass on the constitutionality of this kind of statute 'on its face' ", 442 U.S. at 163, without determining whether the presumption was mandatory; and in fact the presumption was not mandatory, as the New York Court of Appeals had held in People v. Lemmons, 40 N.Y.2d 505, 510-11, 354 N.E.2d 836, 840, 387 N.Y.S.2d 97, 100 (1976).

Likewise in the instant...