Defendant moves, pursuant to CPL 440.20, for an order setting aside his sentence as violative of the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution.

The motion is denied.

On March 31, 2008, the defendant was sentenced to 15 years

in prison upon his conviction for criminal possession of an Uzi which he fired at several people on the streets of Brooklyn. The defendant appealed his conviction and sentence and both were affirmed by the Appellate Division (80 AD2d 625). The Court of Appeals denied leave to appeal (17 NY2d 817) and his federal habeas corpus petition is pending.

Since the sentence imposed was within the statutory parameters established by the New York State Legislature it is not cruel and unusual, except under exceptional circumstances (People v Khan,

89 AD3d 750). In this case, the defendant fired his machine gun in the direction of club bouncers who refused him entry after discovering the gun. The defendant also has a prior conviction for firing a gun into a crowded club after being asked to leave for refusing to stop smoking in the club. [*2]

In undertaking the often difficult task of determining an appropriate sentence, courts traditionally consider the principles of rehabilitation, retribution, deterrence and incapacitation. Incapacitation, as a justification for punishment, has taken many forms. Of course, the death penalty is the ultimate incapacitation; but the physical removal of offenders to penal colonies in 18th and 19th century Britain, as well as present restrictions on driving for DWI offenders are other forms. A particular barbaric form of incapacitation would be dismemberment for thieves and others. In this country in the 21st century, the primary method of incapacitation is imprisonment. It works in the sense that for the duration of their prison term, offenders are restricted from committing crimes within the community. Incapacitation, as a sentencing principle, is concerned with risk, and the prevention of harm for as long as possible (See: 18 USC 3553 [2][d]; Powell v Texas, 392 US 514).

As outlined above, this defendant has a history of vicious, violent behavior, and his actions have placed many innocent people at great risk. The maximum term of imprisonment is necessary to protect generations of New Yorkers from him and its imposition is neither cruel, nor unusual. Since the defendant's sentence is within the statutory parameters and no exceptional circumstances are present since it reflects a legitimate penological goal (Graham v Florida, 50 US 48); the motion must be denied.

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.