Indeed at sentencing, the court declared that having read the probation report, it was unable to find out how she "ever got mixed up in this" and that in light of the mandatory sentence, it had no option but to sentence defendant to six years to life. In upholding the constitutionality of the criminal drug statutes, including their mandatory sentencing provisions, the Court of Appeals observed in People v Broadie ( 37 N.Y.2d 100, 118-119) that "because of the Legislature's rational view of the gravity of the offenses, the language posed by the offenders, and the penological purposes to be served, the punishments imposed for these crimes in the present state of man's knowledge were not grossly disproportionate or cruel and unusual in the constitutional sense * * * This is not to say that in some rare case on its particular facts it may not be found that the statutes have been unconstitutionally applied (cf. Furman v Georgia, 408 U.S. 238, 460-461 [POWELL, J., dissenting])." The instant case may well be that rare case envisioned in Broadie. Indeed, at sentencing the People declared as follows: `[T]raditionally * * * the People refrain from making statements on the question of sentence.

Her conviction was appealed through the State court system, and was affirmed by the New York Court of Appeals sub nom., People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975). In her original petition for a writ of habeas corpus, Ms. Fowler alleged in conclusory fashion several trial errors in addition to the constitutional claims advanced also by her co-petitioners.

A Justice of the Appellate Division granted the People's application for leave to appeal, and we now reverse. In People v Broadie ( 37 N.Y.2d 100, cert denied 423 U.S. 950), this Court in an opinion by Chief Judge Breitel, albeit not without doubts expressed regarding the wisdom of the severity of the sentencing scheme for drug offenses enacted in 1973 (L 1973, chs 276-278), upheld the facial and as applied validity of the mandatory maximum life imprisonment sentence and various mandatory minimum prison sentences in that legislation as against challenges under the cruel and unusual punishment prohibitions of the State and Federal Constitutions. In Broadie, this Court adopted the principle that a sentence may constitute cruel and unusual punishment by being "`cruelly' excessive, that is, grossly disproportionate to the crime for which [it is] exacted" ( 37 N.Y.2d, at 125 [citations omitted]; see also, id., at 111).

See Commonwealth v. Jackson, 369 Mass. 904, 344 N.E.2d 166, 173-74 (1976) ("[A] penalty designed solely or primarily to deter may be so excessive in comparison to other punishments for more serious crimes as to constitute cruel and unusual punishment."); People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 478, 332 N.E.2d 338, 344 (1975) ("Littering or speeding, for example, would certainly be diminished by the threat of severe punishments, but they are relatively minor offenses to which penalties of the kind imposed for [serious felonies] would be readily recognized as grossly disproportionate."). Deterrence is an acceptable goal of punishment, but because it cannot account for constitutional prohibitions against excessive punishments, it is not a good tool for measuring the proportionality of a punishment under the cruel and unusual punishments clause.

After a jury trial, appellee was sentenced to a term of four years to life for an A-III felony. Her sentence was upheld unanimously by both the Appellate Division, 46 A.D.2d 838, 361 N.Y.S.2d 408 (3d Dep't 1974), and the New York Court of Appeals, People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975), in face of an attack that the sentence was unconstitutional because it constituted cruel and unusual punishment. C) Proceedings Below.

Appellant urges that the disparity in sentencing between that meted out to her and that given to her codefendants, under the facts of this case, amounts to cruel and unusual punishment. Although the Court of Appeals is not permitted to review the appropriateness of a sentence, a question of law reviewable by it is presented where the issue is one of the power of the court below to impose the particular sentence (see N Y Const, art VI, § 3; Cohen and Karger, Powers of the New York Court of Appeals, § 198, pp 745-746; see, also, CPL 470.30, subd 1). Appellant was sentenced within the provisions of section 70:00 of the Penal Law in force at the time in question and the constitutionality of that statute cannot be seriously questioned (see People v Broadie, 37 N.Y.2d 100). It cannot be said, under the equal protection clause of either the State Constitution (NY Const, art I, § 11) or the United States Constitution (US Const, 14th Amdt), that on the facts of this case that the statutes have been unconstitutionally applied (see People v Broadie, 37 N.Y.2d 100, 119, supra).

( People v. Kennedy, 70 AD2d 181; People v. Rowe, 236 AD2d 637; People v. Gonzalez, 131 AD2d 873; People v. Bethune, 105 AD2d 262; People v. Fowler, 46 AD2d 838, affd sub nom. People v. Broadie, 37 NY2d 100; People v. Tice, 131 NY 651; People v. Hadden, 95 AD2d 725; Feldsberg v. Nitschke, 49 NY2d 636; People v. Becker, 210 NY 274; People v. Panetta, 250 AD2d 710.) XV. Due to their personal knowledge of evidentiary facts, a trial prosecutor, the trial judge, and defense counsel all became unsworn witnesses before the jury, denying Mr. Cahill his rights to a fair trial, an impartial trial judge, and unconflicted counsel.

Notwithstanding this language, the majority now evaluates the retributive and deterrent values of capital punishment and finds the penalty mandated by the New York statute disproportionate to defendant's crime. I know of no other punishment which this court has struck down as disproportionate (see People v Broadie, 37 N.Y.2d 100, 111). Briefly, and without accepting the majority's premise, it should be pointed out that the retributive value and deterrent effect of capital punishment are valid sentencing considerations which the Legislature was entitled to weigh and accept when enacting the statute (see Furman v Georgia, 408 U.S. 238, 394-395, supra; Roberts [ Stanislaus] v Louisiana, 428 U.S. 325, 353-355 [White, J., dissenting], supra; People v McConnell, 49 N.Y.2d 340, 346; People v Suitte, 90 A.D.2d 80, 83-85; see, also, People v Gittelson, 18 N.Y.2d 427, 432).

Perhaps it was out of a recognition of this problem that, just as it has chosen to leave the act of buying drugs unprohibited by the criminal law, the Legislature has also left the agency defense inviolate. Given the accelerated and massive legislative attention that the narcotics laws have received within the last decade, and the fact that our Legislature has chosen to punish drug trafficking more severely than has any other jurisdiction(People v Broadie, 37 N.Y.2d 100, 116, cert den 423 U.S. 950; Carmona v Ward, 576 F.2d 405 [OAKES, J., dissenting]), we must assume that its acceptance of the defense represents a calculated and ameliorative judgment not to impose such penalties upon a person who merely facilitates the acquisition of drugs by a purchaser (People v Chong, supra, p 74). In so indicating, the court, as at the time of our decision in People v Broadie, 37 N.Y.2d 100, 118, supra, does not pass on the wisdom of the Legislature's judgment.

There are cases where it can be seen that this is what the Legislature intended. For instance, the pusher who introduces a potential addict to heroin, free of charge, is at least as culpable as the pusher who sells to one who is already addicted, and there is no reason why they should be treated differently under the law (cf. People v Broadie, 37 N.Y.2d 100, 113). There are also sophisticated drug transactions, particularly larger sales, where it may be difficult or impossible to prove there has been a sale or exchange in the ordinary sense because the transfer of the drugs and the money may occur at different times and places. In those cases too proof of the transfer of the drugs alone may suffice to prove the sale.