Motion to Dismiss or Affirm — Felix v. New York

Supreme Court brief1983

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

No. 82-6732

DAVID FELIX,

Appellant,

~against-

STATE OF NEW YORK,

\ppe) Lee.

On Appeal From the Court of Appeals of New York

MOTION TO DISMISS OR AFFIRM

---=- -—----— ----------

ROBERT M. MORGENTHAU

District Attorney

New York County

One Hogan Place

New York, New York 10013

(212) 553-9000

ROBERT M. PITLER

AMYJANE RETTEW

DONNA KRONE

Assistant District Attorneys

Of Counsel

TABLE OF CONTENTS

TABLE OF PETTITT oo bck vcecisectcccccsesetcvcieves

TRE ie 6 oh cwcecscsedoeesercescrvereerboKcecede

PRELIMINARY SETA oc cccccccvescccesceeccceccecees

THE STATE STATUTE TRVOLVED « occcccccccceccesoccscceve

STATEMENT OF THE Cec ccccccccrccciveccescocccoecece

ARGUMENT - THERE IS NO SUBSTANTIAL FEDERAL

QUESTION THAT THE NEW YORK

LEGISLATURE HAS THE AUTHORITY TO

ENACT A SCHEME LIMITING THE PLEA AND

SENTENCING BARGAINING AVAILABLE TO

DEFENDANTS INDICTED FOR’ ARMED

FELONIES ..cccccsccscccccccsccccsseces

CONCLUSION. ..cccceee

The New York Legislature did

not violate due process by

exercising its traditional

power to enact ai scheme

limiting the sentencing

alternatives available to

defendants who are indicted for

armed felonies but are

permitted to enter negotiated

guilty pleas to lesser crimes...

The procedure set forth in New

York Penal Law Section

70.02(5)(c) is consistent with

the requirements of procedural

eeereeeeeeeseeeeeeeseeeeeeeeeeeeses

> NO ND F

TABLE OF AUTHORITIES

CASES: PAGE

Bistram v. United States Parole Bd., 535 F.2d 329

Te nc cous pncsesesscesss

Chandler v. Fretag, 348 U.S. 3 (1954)... seeseeeeeeeeees

County Court of Ulster County v. Allen, 442 U.S. 140

(1979). eeeeeeae eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

Dorszynski v. United States, 418 U.S. 424 (1974)........

Drayton v. rope of the State of New York, 556 F.2d 644

( ir.), cert. led, 4 U.S. 958 (1977)..

Gardner v. Florida, 430 U.S. 349 (1977) ....ccccccccccecs

Graham v. West Virginia, 224 U.S. 616 (1912)............

Hollis v. Smith, 571 F.2d 685 (2d Cir. 1978)......... eee

Leary v. United States, 395 U.S. 6 (1969).........eeeeee

Menechino v. Oswald, 430 F.2d 403 (2d Cir. 1970),

cert. denied, 400 U.S. 1023 (1

mrewer, 406 U.S. 471 (1972) ..ccccccccccccse

Mullaney v. Wilbur, 421 U.S. 684 (1975) .........eeeeeees

North Carolina v. Alford, 400 U.S. 25 (1970)......... ace

Oyler v. Boles, 368 U.S. 448 (1962) .......cccccccccccces

Santobello v. New York, 404 U.S. 257 (1971)......... seas

Specht v. Patterson, 386 "I. . 605 (1967)........eeeeeeees

Tot v. United States, 319 U.S. 463 (1943)........eseeeees

Townsend v. Burke, 334 U.S. 736 (1948) .........cccccceces

United States v. Bowser, 497 F.2d 1017 (4th Cir.), cert.

denied, 423 U.S. 997 tl) eeeeeeesses erene

United States v. Cifarelli, 401 F.2d 512 (2d Cir.),

cert. denied, 393 U.S. 987 (1968).......... eee

United States v. DiFrancesco, 449 U.S. 117 (1980).......

-ii-

2, 7, ll, 17

13, 14, 15

ll, 16

11,12

10, 15

TABLE OF AUTHORITIES

—_——

CASES :

United States v. le, 348 F.2d 715 (2d Cir.), cert.

denied, U.S. 843 CIPOO) 6c bc bnebessendecencs

United States v. Fatico, 603 F. 2d 1053 (2d Cir. 1979),

cert. denied., 444 U.S. 1073 (1980) eeeeeeeeeneee

United States v. Grayson, 438 U.S. 41 (1978) .......eeeeee

United States v. Harris, 558 F.2d 366 (7th Cir. 1977)....

United States v. Hendrix, 505 F.2d 1233 (2d Cir. 1974),

cert. denied, 423 U.S. 897 So. | ee

United States v. Holt, 397 F. Supp. 1397 (N.D. Tex.

5), att'd in t rev'd in t on other

rounds, 537 Pa 3a5 (1976), cert. denied

nom Hartstrom v. United States, 429

U.S. L051 DT. -caliurcetdccucdcaaekedncoees

United States v. Il , 562 F.2d 399 (6th Cir. 1977),

cert. den , 435 U.S. 906 CRO TO) osvchesneseves

United States v. Inendino, 604 F.2d 458 (7th Cir.),

cert. denied, 444 U.S. 932 [ED TSE bicevicansoees

United States v. Needles, 472 F.2d 652 (2d Cir. 1973)....

United States v. Stewart, 531 F.2d 326 (6th Cir.),

cert. denied, 426 U.S. 922 (1976)........e.0- ae

United States v. Sweig, 454 F.2d 181 (2d Cir. 1972)......

United States v. Tucker, 404 U.S. 443 (1972).......cecees

United States v. Williamson, 567 F.2d 610 (4th Cir. 1977)

Williams Vv. New York, 337 U.S. 241 CRUGE cossuswcusevenans

Wolff v. McDonnell, 418 U.S. 539 (1974) ......cceeeseesees

-iii-

9, 10, 12

15,

12,

13, 15, 16

(CON'T)

STATUTES :

U.S. Const. Amend. XIV........ Cheds LeCEaeeuseeeeseees “see

18 U.S.C. §3575(b) (e) (West Supp. 1983) .....cccceeceecces

N.Y. Criminal Procedure Law §1.20(41)

(McKinney 1981) .....ccccccccccccccccccccccees ee

N.Y. Penal Law §70.02(5) (McKinney Supp. 1982)........+6.

N.Y. Penal Law §110 (McKinney 1975) ........eeeeees ecvccce

N.Y. Penal Law §160.10 (McKinney 1975) ......eeeeceeeecees

N.Y. Penal Law §160.15(3) (McKinney 1975) .......eeeeeeeees

N.Y. Penal Law §265.01 (McKinney 1980)......... ccvcce eee

OTHER AUTHORITIES:

Bellacosa, 1978 Supplementary Practice Commentary to N.Y.

CPL §220.10 (McKinney Supp. 1981)...........00-

Hechtman, 1978 Practice Commentary to New York Penal Law

§70.02 (McKinney Supp. 1982)......cceccceccceces

Schulhofer, Due Process of Sentencing, 128 U. Pa. L. Rev.

-iv-

1, 2, 3-4, 5,

6, 7, 10, ll,

13, 14, 15, 18

2, 5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

No. 82-6732

DAVID FELIX,

Appellant,

-against-

STATE OF NEW YORK,

Appellee.

On Appeal From the Court of Appeals of New York

MOTION TO DISMISS OR AFFIRM

INTRODUCTION

Appellant David Felix pleaded guilty to a class

D violent felony offense in satisfaction of an indictment

charging him with an armed violent felony. Because Felix

was initially indicted for an armed violent felony but

negotiated a plea to a lesser charge, Section 70.02(5) of

the New York Penal Law (McKinney Supp. 1982) required

that he serve at least one to three years in prison as a

condition of that plea bargain, unless the court found

one of three specified mitigating circumstances about the

nature of the crime. On appeal to this Court, Felix

asserts that the New York Court of Appeals incorrectly

ruled that the statute did not deprive him of due process

of law under the Fourteenth Amendment to the United

States Constitution.

The appellee moves to dismiss this appeal or,

in the alternative, to affirm the judgment of the New

York Court of Appeals, on the ground that it is manifest

that the question is so insubstantial as not to warrant

further argument.

PRELIMINARY STATEMENT

On October 19, 1979, appellant David Felix was

convicted in the Supreme Court of the State of New York,

New York County (Fitzer, J.), upon his plea of guilty, of

Attempted Robbery in the Second Degree [N.Y. Penal Law

§§110/160.10 (McKinney 1975)]. He was sentenced on

August 28, 1980, to an indeterminate prison term of fran

one to three years. On March 16, 1982, the New York

Supreme Court, Appellate Division affirmed the

conviction. People v. Felix, 87 A.D.2d 529 (lst Dept.),

leave to appeal granted, 56 N.Y. 2d 656 (1982). On

February 15, 1983, the New York Court of Appeals (with

one judge dissenting) affirmed the conviction. People v.

Felix, 58 N.Y.2d 156 (1983). Defendant has served his

prison term and been released on parole.

THE STATE STATUTE INVOLVED

This appeal concerns the constitutionality of

Section 70.02(5) of the New York Penal Law, which governs

plea and sentence bargaining for defendants charged in an

indictment with an armed violent felony. An “armed”

felony is defined as a violent felony aggravated by the

use or display of what is or appears to be a firearm.

™.Y. Criminal Procedure Law §1.20(41) (McKinney 1981).

subsection (a) of the statute provides that the

sentencing judge must ordinarily impose an indeterminate

sentence of imprisonment on the _ plea-bargaining

defendant. Subsection (b), however, permits a judge, in

his discretion, to sentence the defendant to a lesser

sentence, including probation, if there exists any one of

three specific mitigating factors concerning the way the

crime was committed. Subsection (c) provides the

mechanism for determining whether any of the mitigating

factors exist in a particular case. Under that

subsection, either the defendant or the district attorney

may present any relevant information to the court, which

may then conduct a hearing on the issue.

Penal Law Section §70.02(5) reads in full:

(a) Except as provided in paragraph

(b) of this section, where a plea of

guilty to a class D violent felony

offense is entered pursuant to

section 220.10 or 220.30 of the

criminal procedure law in

satisfaction of an _ indictment

charging the defendant with an armed

felony as defined in subdivision

forty-one of section 1.20 of the

criminal procedure law, the court

must impose an indeterminate

sentence of imprisonment pursuant to

section 70.00.

(b) In any case in which the

provisions of paragraph (a) hereof

or the provision of subparagraph

(ii) of paragraph (c) of subdivision

two of this section apply, the court

may impose a sentence other than an

indeterminate sentence of

imprisonment, or a definite sentence

of imprisonment for a period of no

less than one year, if it finds that

one or more of the following factors

exist: (i) mitigating circumstances

that bear directly upon the manner in

which the crime was committed; or

(ii) where the defendant was not the

sole participant in the crime, the

af-

defendant's participation was

relatively minor although not so

minor as to constitute a defense to

the prosecution; or (iii) possible

deficiencies in proof of the

defendant's commission of an armed

felony.

attorney shall have an opportunity

to present relevant information to

assist the court in making a

determination pursuant to paragraph

(b) hereof, and the court may, in its

discretion, conduct a hearing with

respect to any issue bearing upon

such determination. If the court

determines that an _ indeterminate

sentence of imprisonment should not

be imposed pursuant to the

provisions of such paragraph (b), it

shall make a statement on the record

of the facts andd circumstances upon

which such determination is based. A

transcript of the court's statement,

which shall set forth the

recommendation of the district

attorney, shall be forwarded to the

state division of criminal justice

services along with a copy of the

accusatory instrument.

STATEMENT OF THE CASE

On January 18, 1979, appellant forced Sam Rohm

onto a subway train at 86th Street in Manhattan by

displaying both a knife and what appeared to be a pistol

and threatening Rohm with physical injury. While on the

train, appellant stole a "Grateful Dead” button from

Rohm. Appellant then forced Rohm off the train at the

42nd Street station, and was searching Rohm's pockets

when the police arrested him. The stolen button, the

knife and the imitation pistol were recovered fram

appellant. In an indictment filed on January 23, 1979,

appellant was charged with Robbery in the First Degree

(with a knife) (N.Y. Penal Law §160.15(3) (McKinney

1975)], Robbery in the Second Degree (displaying what

appeared to be a pistol) as an Armed Felony (N.Y. Penal

Law §160.10(2) (b) (McKinney 1975)], Attempted Robbery in

aga

the First Degree (N.Y. Penal Law §§110/160.15(3) (McKinney

1975)), and two counts of Criminal Possession of a Weapon

in the Fourth Degree (N.Y. Penal Law §265.01 (McKinney

1980)}. Indictment No. 282/79.

On October 19, 1979, appellant offered to plead

guilty to Attempted Robbery in the Second Degree in

satisfaction of the entire indictment (Plea: A50-51).*

The court explained to appellant that he was offering to

plead guilty to a class D violent felony offense and

that, because the indictment charged an armed felony, a

sentence of at least one to three years in state prison

was required. The court promised, however, that it would

consider any application for a lesser sentence due to

mitigating circumstances, but would not promise to impose

a lesser sentence (Plea: A52-54). Appellant replied

that he understood the terms of his negotiated plea

(Plea: A55-57). He then admitted that on January 18,

1979, he had forcibly stolen a "Grateful Dead" button at

knifepoint fron Sam Rohm in the subway at Broadway and

86th Street (Plea: A57-58).

On January 30, 1980, appellant presented a

written memorandum, asking the court to find "mitigating

circumstances" pursuant to Section 70.02(5) (b) of the New

York Penal Law and to impose more lenient punishment than

the state prison sentence otherwise mandated. The court

found "insufficient mitigating circumstances” and denied

the request on February 22, 1980 (see Decision: A40). In

June of 1980, appellant asked the court to hold that

Penal Law Section 70.02(5) violated due process of law

under the State and Federal constitutions. In a written

*Numbers preceded by "A" refer to Appellant's

Appendix; those preceded by "JS" refer to Appellant's

Jurisdictional Statement.

decision dated August 28, 1980, the court found that the

statute does not "automatically exclude” an individual

who has been indicted for an armed felony fram the “usual

alternatives to a state prison sentence under a plea to a

'D' violent felony.” Rather, the statute simply

establishes “certain guidelines and conditions” for the

court's exercise of its power to impose an alternative

sentence (Decision: A40-42). The court therefore

concluded the statute was constitutional.

On August 28, 1980, appellant once again asked

the sentencing court to find “mitigating circumste mes"

because of appellant's family history and the fact that

nobody was injured during the comission of the crime

(Sentence: A45-46). The prosecutor noted that this was

appellant's fourth arrest and third robbery arrest, and

that he was on probation on a robbery case when he

committed this crime (Sentence: A46-47). The court stood

by its previous decision that no relevant mitigating

factors existed, and refused to reconsider its decision

that Section 70.02(5) of the Penal Law was constitutional

(Sentence: A47). The court then sentenced appellant to

the promised prison sentence of fram one to three years

(Sentence: A48).

On appeal to the Appellate Division of the New

York Supreme Court, appellant claimed that Section

70.02(5) of the Penal Law denied him due process of law

for three reasons. First, he argued that the statute

improperly prevents persons indicted for an armed felony

cffense from receiving a negotiated sentence of less than

from one to three years, unless specified mitigating

factors exist. Second, he contended that the statute

creates an unconstitutional presumption of guilt and

improperly shifts to a defendant the burden of

exonerating himself. Third, appellant asserted that the

Statute unconstitutionally precludes the court fram

considering a defendant's background in imposing

sentence, Tne Appellate Division affirmed the

conviction. People v. Felix, 87 A.D.2d 529 (lst Dept.),

leave to appeal granted, 56 N.Y.2d 656 (1982) (A15-39).

On appeal to the New York Court of Appeals,

appellant repeated his challenge to the constitutionality

of the statute. That Court, with one judge dissenting,

held that Penal Law Section 70.02(5) did not violate

either the State or the Federal constitution. People v.

Felix, 58 N.Y.2d 156 (1983) (Al-14).

ARGLMENT

THERE IS NO SUBSTANTIAL FEDERAL

QUESTION THAT THE NEW YORK

LEGISLATURE HAS THE AUTHORITY TO

ENACT A SCHEME LIMITING THE PLEA AND

In his jurisdictional statement, appellant

asserts that Section 70.02(5) of the New York Penal Law

Geprived him of his Fourteenth Amendment right to due

process of law for several reasons. First, he claims

that the New York Legislature has no power to restrict

what he calls the "ordinary sentencing discretion of the

court" (JS: 9), even when the plea and sentence are

negotiated by defendants indicted for armed violent

felony offenses. Second, appellant asserts that the

Statute creates a "mandatory presumption” of a

Gefendant's guilt of an armed felony, and shifts to him

the burden of disproving his guilt. Finally, he argues

that there are insufficient procedural safeguards at the

hearing at which it is determined whether a defendant

should be given a more lenient sentence because of

mitigating circumstances (JS: 16). As will be

demonstrated, appellant has failed to raise any

substantial federal question which merits review by this

Court.

A. The New York Legislature did not violate due process

by exercising its traditional power to enact a

scheme limiting the sentencing alternatives

available to defendants who are indicted for armed

felonies but are permitted to enter negotiated

guilty pleas to lesser crimes.

Concerned with the problem of violent crime and

the overly lenient treatment of violent criminals, the

New York Legislature enacted a unified package of

legislation aimed at limiting the alternatives open to

defendants in a plea-bargaining situation. First, it

limited the crime to which a defendant charged with an

armed violent felony could plead: no plea lower than than

a class D violent felony could be accepted. Second, it

limited the sentence available to such a plea-bargaining

Gefendant: absent specified ameliorating factors bearing

upon the way the crime was committed, the defendant must

receive a prison term of at least one to three years.

It is beyond dispute that a legislature has the

power to restrict plea bargaining, or even to eliminate

it altogether. Santobelio v. New York, 404 U.S. 257, 262

(1971). Perhaps recognizing this, appellant does not

challenge the Legislature's decision to limit the degree

of the crime to which a defendant can plead. Nonethe-

less, he does challenge the Legislature's decision to

"See Hechtman, 1978 Practice Commentary to

Penal Law §70.02 (McKinney Supp. 1962); Bellacosa, 1978

Supplementary Practice Commentary to CPL §220.10

inney Supp. 1981).

<@~

limit the nature of the sentence imposed as a result of

plea-bargaining. His claim that the Legislature cannot

restrict sentencing discretion by limiting the factors to

be considered in mitigation is totally without support

and raises no substantial federal question.

Plainly, a legislature has the power to define

the punishment applicable to each non-capital crime, even

by choosing to make sentencing totally mandatory. As

this Court discussed in United States v. Grayson, 438

U.S. 41, 45-47 (1978), mo ome penological model is

mandated by the Constitution. In the past, judges had no

discretion at all: each crime had its. specific

punishment, and courts could not consider a defendant's

background in imposing sentence. Id. at 45-46. More

recently, the prevailing philosophy has been the

rehabilitative model, in which legislatures permitted

judges to consider a broad, almost unlimited variety of

factors in determining what sentence was appropriate. Id.

at 46-49. True, as appellant notes, when a sentencing

Statute mandates that a judge consider a broad range of

factors before imposing sentence, it is an abuse of

discretion for the judge not to do so. See, é.g.,

Dorszynski v. United States, 418 U.S. 424 (1974); United

States v. Harris, 558 F. 2d 366, 372 (7th Cir. 1977);

United States v. Bowser, 497 F.2d 1017 (4th Cir.), cert.

denied, 423 U.S. 997 (1975). However, those precedents

plainly do not prevent the Legislature fram restricting

the range of discretion given a sentencing judge in the

first instance.

*See Hechtnan, 1978 Practice Commentary to

Penal Law §70.02 (McKinney Supp. 1982); Bellacosa, 1978

Supplementary Practice Commentary to CPL §220.10

(McKinney Supp. 1981).

Since a legislature is empowered to give a

judge total discretion in sentencing, or no discretion at

all, it may certainly take a middle course and give him

some discretion. That is exactly what the New York

Legislature did in enacting Penal Law Section 70.02(5).

It permitted the sentencing judge to consider the usual

broad range of factors, including a plea-bargaining

Gefendant's background, in determining the length of the

prison term he is to receive. At the same time, however,

the Legislature mandated that only certain specified

factors dealing with the nature of the crime be

considered in determining whether a defendant receives

less than a ome to three year term.

No federal case has ever adopted appellant's

unprecedented argument that legislatures do not have the

power to limit judicial discretion in sentencing in this

way. Indeed, this Court has suggested that the reign of

the "rehabilitative" unlimited judicial discretion model

may soon be over. United States v. DiFrancesoco, 449 U.S.

117, 143 (1980); United States v. Grayson, 438 U.S. at

47, fns. 6 and 7; see also Schulhofer, Due Process of

Sentencing, 128 U. Pa. L. Rev. 733, 734, 737 (1980).

Thus, no substantial federal question is raised by

appellant's attempt to constitutionalize current

penological policy on an issue that has traditionally

been within the aegis of the legislative branch of

government .

Nor is a substantial federal question raised by

appellant's claim that consideration of “unsustained

Charges in the indictment" constitutes reliance on

"misinformation of constitutional magnitude." In the

first place, Penal Law Section 70.02(5) does not make the

sentence imposed on a plea-bargaining defendant depend

"solely" on the crime initially charged, as appellant

argues. Cf. Drayton v. People of the State of New York,

556 F.2d 644, 646-47 (2d Cir.) cert. denied, 434 U.S. 958

1977). Yather, a judge may consider a broad variety of

factors, including the defendant's background and prior

criminal conduct, in deciding whether to impose the

maximum prison term of two and one-third to seven years

or the minimum of one to three years. And, such a

defendant is not even precluded fram the lower range of

sentences, such as probation. The statute vests the

sentencing judge with discretion to impose the lesser

sentence when any one of three mitigating factors exist.

People v. Felix, 58 N.Y¥.2d at 163.

Of course, as appellant points out, an

indictment alone cannot constitute proof during the

guilt-determining process. Tot v. United States, 319

U.S. 463, 466 (1943). However, Penal Law Section

70.02(5) deals with the sentencing, and not the guilt-

determining, phase of a criminal case. No federal case

has held that charges in an indictment constitute the

type of “misinformation of constitutional magnitude"*

that a sentencing judge is forbidden to consider. Just

the opposite is true. Federal cases have uniformly held

that information about crimes initially charged in an

indictment but dismissed when a defendant pleads guilty

*See United States v. Tucker, 404 U.S. 443, 446

(1972); Townsend v. Burke, 334 U.S. 736, 741 (1948);

Roberts v. United States, 445 U.S. 552, 556-57 (1980).

-ll-

may be considered by the sentencing judge.* Indeed,

sentencing judges may consider criminal conduct which did

not result in a conviction, crimes for which a defendant

was never charged, and even facts relating to charges on

which the defendant was acquitted.**

Judicial consideration of the "real offense” in

sentencing is particularly appropriate in the plea

bargaining situation, since the crime to which a

defendant ultimately pleads guilty may bear mo

relationship to the crime he has actually committed.

Indeed, a defendant may plead guilty without admitting

the facts of the crime to which he offers to plead, North

Carolina v. Alford, 400 U.S. 25, 37 (1970), may plead

guilty to a hypothetical crime, People v. Griffin, 7 N.Y.

24 511 (1966), or may admit facts making out another

crime. That is precisely what happened here: appellant

pleaded guilty to Attempted Robbery in the Second Degree,

which contemplates the use of an imitation pistol, but

admitted facts making out Robbery in the First Degree,

which contemplates the use of a knife. As the Second

Circuit has said, to argue that the Constitution is

**See, e.g., Billiteri v. United States Bd. of

Parole, 541 PF. 2d 938, 944-45 (2d Cir . 1976); Bistram v.

United States Parole Bd., 535 F.2d 329, 330 (5th Cir.

1976); United States v. Needles, 472 F. 2d 652 (2d Cir.

1973); Menechino v. Oswald, 430 F. 2d 403, 407-08 (2d

Cir. 1970), cert. denied, 400 U.S. 1023 (1971); United

States v. oyle, 348 F. 20 715, 721 (2d Cir.), cert.

Genied, 3870.5. 843 (1965). =.

**Williams v. New York, 337 U.S. 241, 244

(1949) and United States v. Cifarelli, 401 F. 24 512 (2d

Cir.), cert. denied, 393 U.S. 987 (1968) (criminal

conduct which did not result in a conviction); United

States 2a Gra , 438 U.S. at 53-54 and United States v.

24 1233, 1235 (2d Cir. 1974), cert.

aaa. 423 U.S. 897 (1975) (crimes for which defendant

was never charged); Townsend v. Burke, 334 U.S. at 740-

4l and United States v. Sweig, 54 F. 24 181 (20 Cir.

1972) (other charges on ye the defendant was

acquitted).

-12-

affronted by considering unproved criminal activity while

determining sentence in a plea bargaining situation such

as this one, is as implausible as taking the double

jeopardy clause to bar reference to past convictions.

United States v. Doyle, 348 F.2d at 721; see Schulhofer,

Supra, at 763. Indeed, if it is within the ordinary

discretion of the judge to consider unsustained charges

in the indictment in deciding on an appropriate sentence,

the Legislature certainly has the authority to mandate

that a sentencing judge consider this factor.

It was well within the Legislature's power to

restrict plea and sentence bargaining for defendants

charged with armed violent felonies. Nor is any

Substantial federal question raised by a _ sentencing

court's consideration of the nature of the crime

originally charged in the indictment.

B. The procedure set forth in New York Penal Law

Section 70.02(5) (c) is consistent with the

requirements of procedural due process.

It is beyond cavil that the concept of due

process is flexible, and its procedural requirements vary

with different situations. See, e.g., Gardner v.

Florida, 430 U.S. 349, 358 fn. 9 (1977); Wolff v.

McDonnell, 418 U.S. 539, 560-61 (1974); Morrissey v.

Brewer, 408 U.S. 471, 481 (1972). In particular, this

Court has recognized that "the due process clause should

not be treated as a device for freezing the evidential

procedure of sentencing in the mold of trial procedure.”

Williams v. New York, 337 U.S. at 251.

Appellant, however, attempts to do just that.

Relying on Specht v. Patterson, 386 U.S. 605 (1967),

appellant argues that Penal Law Section 70.02(5) (c)

subjects a defendant to “enhanced punishment" based upon

"facts not established by the conviction," and that he is

therefore entitled to most of the due process rights

applicable at trial. This argument has consistently been

rejected by the federal courts, and need not be

considered again.

Specht involved a defendant convicted under a

Colorado indecent liberties statute under which the

Maximum sentence that could be imposed was ten years.

Without holding a hearing, the trial court used that

conviction as a basis for sentencing Specht under the Sex

Offenders Act, a separate statute, under which the

maximum sentence that could be imposed was life

imprisonment. This Court held that due process required

that defendant have the right to be present with counsel,

to confront and cross-examine witnesses, and to present

evidence on his own behalf before the court could, on the

basis of the previously uncharged crime which the Sex

Offenders Act involved, impose a sentence heavier than

that permitted for the crime of which he stood convicted.

386 U.S. at 610; see Schulhofer, supra at 762.

In the first place, no defendant is subject to

"enhanced punishment" after a post-plea hearing pursuant

to Penal Law Section 70.02(5)(c). Rather, any new facts

found at that hearing can serve only to reduce, not to

enhance, the punishment which a defendant was told he

would receive at the time he entered his guilty plea.

And, in contrast to Specht, Penal Law Section 70.02(5) (c)

involves no separate statute and no new criminal charge.

What is at issue is not a defendant's guilt of a new and

previously uncharged crime, but only the degree of

punishment to be imposed on him for the crime of which he

-l4-

was already convicted. See Williams v. New York, 337

U.S. at 247.

In any event, a sentencing inquiry into facts

not brought out at a trial or plea colloguy is simply not

tantamount to a “new criminal charge" against a

defendant. This is true even if a defendant is subject to

enhanced punishment after the inquiry, as are defendants

who are sentenced as repeat offenders,* and defendants

found to be “dangerous special offenders" under the

Federal Organized Crime Control Act of 1970.** 18 U.S.C.

§3575(e) (West Supp. 1983). Indeed, by definition,

inquiry into ai defendant's background involves

consideration of facts not established by the conviction.

Yet this Court has specifically rejected appellant's

claim that such an inguiry requires freezing the

evidential procedure of sentencing in the mold of trial

procedure. Williams v. New York, 337 U.S. at 251.

Therefore, appellant's argument that he was entitled to

trial-like procedures at sentencing raises no substantial

federal question.

Furthermore, unlike the statute involved in

Specht, Penal Law Section 70.02(5)(c) gives a defendant

*See, e.g., Oyler v. Boles, 368 U.S. 448, 451-

52 (1962); ‘Chanlies v~ Wretaa 3 U.S. 3. 8 (1954),

Graham v. West Virginia, 4 U.S. 616, 624-25 (1912).

**See e.g. United States v. Stewart, 531 F. 2d

326, 332 (6th Cir.), cert. denied, 426 U.S. 922 (1976);

United States v. Inendino, 604 F. 2d 458, 463 (7th Cir.),

Cert. denied, 444 U.S. 932 (1979); United States v.

Tiaoqua, 562 F.2d 399, 403 fn. 7, 405 (6th Cir. 1977),

cert. denied, 435 U.S. 906 (1978); United States v.

Williamson, 567 F.2d 610, 614-15 (4th Cir. 197?); United

States v. Holt, 397 F. Supp. 1397 (N.D. Tex. 1975), aft’d

in t rev'd in t on other grounds, 537 F. 2d 645

ROLF cert. Sentod Sub nom Hartstrom v. United States,

429 U.S. 1051 (1977) . see also, United States v.

DiFrancesco, a; United States v. Patico, 2d

“ ( r. 1575), cert. denied, 444 u.s. 1073

(1980) Hollis v. Smith, 571 F.2d 665, 694-95 (2d Cir.

8).

the right at a hearing to deny or explain the information

concerning the original charge in the indictmert.

Gardner v. Florida, 436 U.S. at 355-56; Williams v. New

York, 337 U.S. at 244, He is specifically permitted to

present relevant information to the sentencing judge, and

of course he is entitled to the assistance of counsel at

the inquiry. Nor is there any indication that he would

not be able to confront and cross-examine witnesses

against him, or call his own witnesses at the hearing, as

may defendants being sentenced as dangerous special

offenders under 18 U.S.C. §3575(b).

And, contrary to appellant's claim, the statute

dees not place on him the burden of proving that he did

not commit the crimes with which he was originally

charged. First, appellant erroneously bases his argument

on precedents dealing with presumptions which shift the

burden of proof to a defendant during the guilt-

determining process. County Court of Ulster County v.

Allen, 442 U.S. 140 (1979); Mullaney v. Wilbur, 421 U.S.

684 (1975); Leary v. United States, 395 U.S.6 (1969); Tot

v. United States, supra. Again, appellant misses the

point by equating the guilt-determining with the

sentencing process. What is involved here is the

determination of the appropriate sentence for a crime of

which appellant has already been convicted.

In any event, the statute does not specify a

burden of proof at all, but explicitly gives both the

prosecutor and the defendant a chance to prevent any

relevant information to the court. A sentencing judge is

as likely to get his information about the way the actual

crime was committed from the prosecution or the pre-

sentence report as fram a defendant. Due process is

hardly offended by the probability that in some cases

establishment of a mitigating factor will require that a

defendant come forward with proof. People v. Felix, 58

N.Y.2d at 166-67.*

Indeed, in every case arising under this

Statute, the People have already gone forward in the

grand jury with evidence legally sufficient to prove that

a defendant committed an armed violent felony. The

People in appellant's case were also ready to proceed to

trial on all counts. Appellant could have had a public

trial where he could put the People to their proof beyond

a reasonable doubt. It was he, on the advice of counsel,

who avoided airing of the facts by negotiating the

bargain by which he was permitted to plead guilty to a

lesser crime, He voluntarily chose to accept that

advantageous bargain, and a far more lenient sentence

than would be required if he were convicted of the top

charge at trial. Having made that choice, he cannot now

argue that due process mandates still further leniency or

requires at the sentencing all the rights he chose to

forego when he waived his right to trial.

* * o

In sum, appellant's arguments fly in the face

of established federal law and do not merit consideration

by this Court. All previous law on the subject supports

*Indeed, it has consistently been held in the

federal courts that the dangerous special offender

Statute, which places the burden of proof on the

government by a preponderance of the evidence, actually

provides “far more due process protection for the

convicted offender at his hearing on increased sentence

than is required.” United States v. Stewart, supra;

guited _States States v. Inendino, supra; United States v.

Tisogua, | supe ‘supra; waitel-Btates v. Williamson, supra;

United States v. Holt, supra.

@jJo

the conclusion that a legislature has the power to set

sentencing guidelines for judges, and that a sentencing

judge may consider the crime for which a defendant was

indicted in deciding what sentence to impose. The

procedure set down in Penal Law Section 70.02(5) is

similar to that in other statutes which have been found

to satisfy the requirements of due process. There is no

reason, for this Court to disturb this well-settled area

of Jaw by considering this appeal.

CONCLUS ION

For the reasons stated herein, this appeal

should be either dismissed or affirmed.

Respectfully submitted,