Thursday, June 09, 2005

New York Court of Appeals Upholds Persistent Felony Offender Law Despite Ring, Blakely, and Booker

People v. Rivera (June 9, 2005) (Op. by Rosenblatt): This Blog normally confines itself to Second Circuit decisions, but since we commented yesterday on the Second Circuit's narrow decision upholding New York's persistent felony offender statute on AEDPA review, see Brown v. Greiner, below, we thought it appropriate in the interest of completeness to discuss the New York Court of Appeals's decision, rendered today, upholding that law on direct review. (Our prediction of a contrary result was, alas, misguided). In Rivera, that Court ruled that N.Y. Penal Law § 70.10 did not violate either Apprendi, Ring, Blakely, or Booker. Of course, it did so only by interpreting the statue in a way that (1) flatly contradicts the plain language of the law itself, and (2) flouts years of case law and accepted practice in the New York courts.

Simply put, the Court upholds the statute by reading it to say that the two prior felony convictions "are both necessary and sufficient conditions for imposition of the authorized [enhanced] sentence for recidivism." Op. at 9; see op. at 6 ("[T]he prior felony convictions are the sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender.") (emphasis in original); op. at 14 ("[N]o additional fact-finding beyond the fact of two prior felony convictions is required under Penal Law § 70.10 or under Criminal Procedure Law 400.20.") (emphasis in original). And because a judge is permitted to find these "facts" under Almendarez-Torres, there is no Sixth Amendment problem with § 70.10. Q.E.D.

This is an incredibly strained reading of New York law. As Chief Judge Kaye points out in her dissent, "under the statute a defendant's classification as a persistent felon does not in and of itself subject the offender to enhanced punishment. . . . Rather, an enhanced sentence is available only for those who additionally are found to be of such history and character, and to have committed their criminal conduct under such circumstances, that extended incarceration and lifetime supervision will best serve the public interest." Dissent at 4. Indeed, under § 400.20, a court can impose the enhanced sentence only "based on fact findings made after a hearing at which the People have the burden of proof by a preponderance of the evidence." Id. at 6. Where an enhanced sentence was imposed without such additional fact findings, Judge Kaye notes, the Appellate Division "has repeatedly vacated persistent felony offender sentences." Id. at 7. Finally, Judge Kaye points out that § 70.10 -- until today -- has always stood "in stark contrast" with § 70.08, which "requires that all three-time violent felons be sentenced to an indeterminate life term on the basis of the prior convictions alone." Id. at 4-5.

(Kudos to Judge Kaye for one final, self-serving reason: She -- as our blog entry on Brown v. Greiner also points out -- notes that while § 70.10 (even correctly interpreted) was likely (or at least plausibly) constitutional in light of Apprendi alone, it was no longer valid in light of Ring. See dissent at 3 ("Thus, inasmuch as Walton was not overruled until Ring, the decision in Rosen neither was contrary to, nor involved an unreasonable application of, Apprendi at the time it was decided." (citing Brown v. Greiner)).


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