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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=47098 Justice Berkman THE PROSECUTION sought to have defendant, convicted by jury, sentenced as a discretionary persistent felon pursuant to Penal Law �70.10 and Criminal Procedure Law �400.20. Defendant argued that the statutes were unconstitutional in light of the decisions in Apprendi v. New Jersey and Ring v. Arizona. The court ruled that, under New York law, as interpreted by the Court of Appeals in People v. Rosen, any persistent felon is eligible for enhanced sentencing, based solely upon his prior convictions and sentences; neither Apprendi nor Ring prevents the state from leaving with the judge the final determination of an offender’s receipt of enhanced sentencing. The court sentenced defendant, as a discretionary persistent felon, to consecutive terms of 15 years to life on each count. Relying on defendant’s criminal record in New York and Florida since 1985, as well as his drug abuse, the court found that defendant persists in committing crimes.

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