Opposition Brief — Singh v. New York

In The

Supreme Court of the United States

October Term, 1995

S

MAHESH K. SINGH,

Petitioner

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent

On Petition For A Writ Of Certiorari

To The Supreme Court, Appellate Division

Second Department, State Of New York

¢ —

RESPONDENT'S BRIEF IN OPPOSITION

+ .

PATRICIA A. MurpHy TaMES M. CATTERSON, JR

Deputy Chief, Counsel of Record

Appeals Bureau District Attorney of

Suffolk County

Criminal Courts Building

200 Center Drive

Riverhead, New York 11901

(516) 852-2500

QUESTION PRESENTED

Does a presumption of vindictiveness arise where a

sentencing judge imposes a sentence three to nine times

greater than that recommended by the prosecutor follow-

ing a defendant’s rejection of a plea bargain and the

election to exercise the right of trial by jury?

TABLE OF CONTENTS

Page

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Respondent’s Brief in Opposition .................. l

SUAME@CRECUIONE. . vec cc nccesacees 23 Ceaule ae l

Reasons for Denying The Writ.......... eaves ea l

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Conclusion... ee baw een beg eeuee

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TABLE OF AUTHORITIES

FeperaAt Cases

Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104

L.Ed.2d 865 (1989)... 0.00.0 cece ccc eee ee. 4,!

Calandra v. Rothwax, 65 N.Y. 2d 897 (1985) ......

Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977,

ES 0 E )

Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58

ES Te

Marchant v. Mead-Morrison Mfg. Co., 252 N.Y. 284

CECT rrGeessle<esesséocccceccvcesovcess

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072,

pe E

Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49

Ce ere eervcveeeete

Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89

cen vccesecebevevesie

United States v. Goodwin, 457 U.S. 368, 102 S.Ct.

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Wasman v. United States, 468 U.S. 559, 104 S.Ct.

a Me GE CEDOED ov ccc cccccccceccees

United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610,

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STATUTES

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New York Constitution, Article 1, §5............

Page

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iv

TABLE OF AUTHORITIES - Continued

Page

United States Constitution 8th Amendment........... 2

United States Constitution 14th Amendment.......... 7

United States Supreme Court Rule 15, subd. 1....... 1

RESPONDENT’S BRIEF IN OPPOSITION

The respondent respectfully requests that this Court

deny the petition for a writ of certiorari, seeking review

of the judgment of the Supreme Court, Appellate Divi-

sion, Second Department, State of New York, entered

March 20, 1995 in People of the State of New York v.

Mahesh K. Singh.

JURISDICTION

Petitioner seeks a writ of certiorari pursuant to 28

U.S.C.A. §1257. Respectfully, we maintain that the ques-

tion presented was not raised and preserved for review

thus the New York State Court of Appeals did not pass on

the question presented and, therefore, 28 U.S.C.A. §1257

may not properly be invoked.

S

REASONS FOR DENYING THE WRIT

Pursuant to United States Supreme Court Rule 15,

subd. 1, 28 U.S.C.A., respondent is obliged to point out

“perceived misstatements of fact and law set forth in the

petition which have bearing on the question of what

issues would properly be before the Court if certiorari

were granted.” Consistent with this obligation, respon-

dent observes that:

(1) Petitioner misstated the procedural history of

the New York State Court of Appeals consideration of the

question “whether the cruel and unusual punishment

provisions of the United States and New York Constitu-

tions are violated when a sentencing judge rejects the

People’s sentencing recommendation and instead

imposes a greater sentence, for no reason other than the

defendant elected to stand trial before a jury?” (Applica-

tion for Reconsideration of Denial of Leave to Appeal,

dated May 4, 1995, at pp. 2-3);

(2) Petitioner misstated the constitutional argument

presented to the New York State Court as petitioner

urged to the Court of Appeals solely a violation of the

New York State and United States Constitutional protec-

tion against “cruel and unusual punishment (U.S. Consti-

tution 8th Amendment; N.Y. Constitution Art. 1, sec. 5)”

(Application for Reconsideration of Denial of Leave to

Appeal, dated May 4, 1995, at p. 9). Thus, although peti-

tioner presently claims that:

“The issue of the excessiveness of the sentence

was set forth in the application for a certificate

granting leave to appeal made to the Court of

Appeals of the State of New York and also in the

application for reconsideration of that tribunal's

denial of leave to appeal” (Petition for a Writ of

Certiorari at p. 4-5),

no issue regarding petitioner’s sentence was raised in

either of the first two letters submitted to the Honorable

Vito J. Titone, Associate Judge, Court of Appeals. The

letters submitted, the initial one dated March 27, 1995,

and the latter seeking to supplement the initial applica-

tion, dated April 17, 1995, do not raise any issue regard-

ing petitioner’s sentence. In fact, in his final

reconsideration application, petitioner noted, at page 2:

EEE a ee a |

“It should be noted that the issue regarding

cruel and unusual punishment was not posed in

previous submissions to Judge Titone. However,

the issue of illegal sentence clearly was pre-

sented in the brief filed by appellants with the

Appellate Division” (Application for Recon-

sideration of Denial of Leave to Appeal, dated

May 4, 1995).

Clearly then, the only time petitioner raised any issue

concerning his sentence in the Court of Appeals was in

his final reconsideration application, dated May 4, 1995,

and, as previously discussed, the constitutional provision

petitioner claimed was implicated was not the Fourteenth

Amendment of the Constitution of the United States, as

presently urged in the Petition for a Writ of Certiorari at

page 2, but the Eighth Amendment of the New York and

United States Constitutions;

(3) Petitioner inappropriately urged that there is

significance to the denial of leave to appeal by the Court

of Appeals. The assertion by petitioner in his Petition for

a Writ of Certiorari, at page 8, that

“with the Patterson holding arising from its own

Department, the irresistible conclusion is that

the Appellate Division in the instant case either

misapplied the holding of this Court in North

Carolina v. Pearce or felt that the facts of Mahesh

K. Singh’s matter significantly differed in qual-

ity from those presented in Patterson, supra. The

latter conclusion is fortified by the fact that the

Court of Appeals declined twice to grant review of

this case, first in its certificate denying leave, which

was later rescinded on technical grounds, and again

following petitioner's application for reconsideration.

While it is understood that such declination is not

evidence of any substantive determination, nonethe-

less, the significance cannot be overlooked, and the

need for the guiding hand of this Court becomes all

the more compelling” (emphasis supplied),

is thus plainly erroneous as the sentencing issue was only

presented in petitioner's very last submission to the

court. Accordingly, absolutely no significance can attach

to the fact that several applications were made and

denied when only the last contained any issue concerning

petitioner's sentence.

Additionally, petitioner argues, contrary to well-

established New York law that denial of leave to appeal is

not authority for any proposition of law (Marchant v.

Mead-Morrison Mfg. Co., 252 N.Y. 284 (1929); Calandra v.

Rothwax, 65 N.Y.2d 897 (1985)], that there is some signifi-

cance to the Court of Appeals “declination” to grant leave

to appeal;

(4) Finally, petitioner wholly ignored this Court’s

review of the “presumption of vindictiveness” in Alabama

v. Smith 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865

(1989) in claiming in his Petition for a Writ of Certiorari,

at page 5, that “it has been more than 25 years since this

Court addressed the issue of the presumption of vindic-

tiveness in Pearce.”

In addition to the above perceived misstatements of

fact or law, we urge that petitioner has misapprehended

the guiding principles of this Court in seeking a writ of

certiorari to review whether a presumption of vindictive-

ness arises in circumstances where there has been no

successful appeal and ultimate resentence.

Petitioner’s reliance on North Carolina v. Pearce, 395

U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) is wholly

misplaced. Petitioner ignores the significance of the fact

that Pearce had been subjected to a longer sentence after

his successful appeal and retrial. As this Court specifically

observed in Alabama v. Smith, supra, 109 S.Ct. at

2204-2205:

“While the Pearce opinion appeared on its

face to announce a rule of sweeping dimension,

our subsequent cases have made clear that its

presumption of vindictiveness ‘do[es] not apply

in every case where a convicted defendant

receives a higher sentence on retrial.’ Texas v.

McCullough, 475 U.S., at 138, 106 S.Ct., at 979. As

we explained in Texas v. McCullough, ‘the evil

the [Pearce] Court sought to prevent’ was not the

imposition of ‘enlarged sentences after a new

trial’ but ‘vindictiveness of a sentencing judge.’

Ibid. See also Chaffin v. Stynchcombe, 412 U.S. 17,

25, 93 S.Ct. 1977, 1982, 36 L.Ed.2d 714 (1973) (the

Pearce presumption was not designed to prevent

the imposition of an increased sentence on

retrial ‘for some valid reason associated with the

need for flexibility and discretion in the sentenc-

ing process.’ but was ‘premised on the apparent

need to guard against vindictiveness in the resen-

tencing process’). Because the Pearce presump-

tion ‘may operate ir the absence of any proof of

an improper motive and thus. . . block a legiti-

mate response to criminal conduct.’ United

States v. Goodwin, supra, 457 U.S., at 373, 102

S.Ct., at 2488, we have limited its application,

like that of ‘other “judicially created means of

effectuating the rights secured by the [Constitu-

tion],” ’ to circumstances ‘where its “objectives”

"* Texas v.

are thought most efficaciously served.

McCullough, supra, 475 U.S., at 138, 106 S.Ct, at

979, quoting Stone v. Powell, 428 U.S. 465, 482,

487, 96 S.Ct. 3037, 3046, 3049, 49 L.Ed.2d 1067

(1976). Such circumstances are those in which

there is a ‘reasonable likelihood,’ United States v.

Goodwin, supra, 457 U.S., at 373, 102 S.Ct., at

2488, that the increase in sentence is the product

of actual vindictiveness on the part of the sen-

tencing authority. Where there is no such rea-

sonable likelihood, the burden remains upon the

defendant to prove actual vindictiveness, see

Wasman v. United States, 468 U.S. 559, 569, 104

S.Ct. 3217, 82 L.Ed.2d 424 (1984).”

Thus, in Alabama v. Smith, supra, where the petitioner was

successful on his appeal from his prior guilty plea and a

longer sentence after trial on the original charges was

imposed, this Court found that since there was no “rea-

sonable likelihood” that the judge was motivated by vin-

dictiveness and that, therefore, there was no basis for

application of the presumption of vindictiveness, peti-

tioner must bear the burden of proving actual vindictive-

ness on the part of the trial judge.

Therefore, petitioner here, falling within the general

rule, must prove actual vindictiveness, as the rebuttable

presumption of vindictiveness on the part of the sentenc-

ing judge applies only in circumstances where, upon a

retrial after a prior trial, a greater sentence is imposed.

Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82

L.Ed.2d 424 (1984).

Petitioner has wholly ignored this Court’s decision in

Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d

466 (1978) in which this Court, consistent with its prior

approval of the plea bargaining process, held that the

titi ai aA ii a,

New Jersey sentencing scheme which conferred substan-

tial leniency upon a defendant who pleaded guilty of

homicide and mandated life imprisonment for those who

were convicted after trial did not violate the 14th Amend-

ment right to equal protection. Thus, supra, 99 S.Ct. at

500-501, the Court held:

“Appellant also argues that the sentencing

scheme infringes his right to equal protection

under the Fourteenth Amendment because it

penalizes the exercise of a “fundamental right.”

We rejected a similar argument in North Carolina

v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d

656 (1969), noting that “[t]o fit the problem

.. . into an equal protection framework is a task

too Procrustean to be rationally accomplished”.

Id., at 723, 89 S.Ct., at 2079. All New Jersey

defendants are given the same choice. Those

electing to contest their guilt face a certainty of

life imprisonment if convicted of first-degree

murder; but they may be acquitted instead or, in

a proper case, may be convicted of a lesser

degree of homicide and receive a sentence of

less than life. Furthermore, a plea of non vult

may itself result in a life sentence. The result

therefore,

“may depend upon a particular combina-

tion of infinite variables peculiar to each

individual trial. It simply cannot be said

that a state has invidiously ‘classified’... . ”

Id., at 722, 89 S. Ct., at 2079.

It cannot be said that defendants found guilty

by a jury are “penalized” for exercising the right

to a jury trial any more than defendants who

plead guilty are penalized because they give up

the chance of acquittal at trial. In each instance,

the defendant faces a multitude of possible out-

comes and freely makes his choice. Equal pro-

tection does not free those who made a bad

assessment of risks or a bad choice from the

consequences of their decision.”;

Clearly then, there is no question presented upon

which a writ of certiorari ought to be granted since this

Court has resolved the issue consistent with its position

articulated in Corbitt v. New Jersey, supra.

Finally, we urge that on the record below, actual

vindictiveness is not demonstrated. We note that peti-

tioner himself has categorized his argument as resting on

implication, as he urged that the trial judge had only

“impliedly admit[ted]” to the imposition of the greater

sentence as a result of the choice to stand trial (Applica-

tion for Reconsideration of Denial of Leave to Appeal,

dated May 4, 1995, at p. 10).

We maintain, as we did in opposing petitioner’s

application for reconsideration, by letter dated May 9,

1995:

“Additionally, the court did not impermissi-

bly punish appellant Singh for standing trial. A

plain reading of the minutes reveals that,

although somewhat inartfully stated, the trial

court explained that although the State may con-

fer substantial benefit on a defendant who

chooses to spare the State a trial and thus sen-

tence the defendant on a negotiated plea to less

punishment than otherwise would be appropri-

ate under the facts, that after trial, the court,

now fully informed of the defendant’s guilty

actions, will impose the full punishment merited

by those actions.”

Additionally, the trial court, cognizant of petitioner’s

denial of any guilt in his sworn trial testimony was constitu-

tionally permitted fo consider that petitioner’s position at

sentencing was, in essence, one in which he now admitted

guilt and sought the leniency which would have been

extended as a benefit of a plea, which demonstrated that

he had been untruthful in his trial testimony. Alabama v.

Smith, supra, 109 S.Ct. at 2206; United States v. Grayson,

438 U.S. 41, 53, 98 S.Ct. 2610, 2617, 57 L.Ed. 582 (1978).

Therefore, we respectfully urge that, on the record

presented, there is no question raised by petitioner which

requires resolution by this Court.

¢

CONCLUSION

FOR THE FOREGOING REASONS, THE QUES-

TION PRESENTED SHOULD BE ANSWERED

IN THE NEGATIVE AND THE PETITION

SHOULD BE DENIED IN ALL RESPECTS.

DATED: Riverhead, New York

December 12, 1995

Respectfully submitted,

James M. CATTERSON, Jr.

District Attorney of

Suffolk County

Patricia A. Murpuy

Deputy Chief, Appeals Bureau