# Opposition Brief — Singh v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1074

## Text

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
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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.
ee gE ee e+)

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,
fe BS |

STATUTES

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

Page

eis 5

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eee 2

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0798%3A2. Public record. Not legal advice.