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New York’s Court of Appeals Wednesday granted leave to appeal to a defendant convicted of first-degree murder in a case that raises some of the same equal protection questions that were cited last week by a federal judge who examined the sentencing provisions in the state’s death penalty law. Judge Carmen Beauchamp Ciparick granted Kristian Hansen’s application to appeal in People v. Hansen without comment, as is the Court of Appeal’s usual practice. The equal protection issue arising from the sentencing options in New York’s first-degree murder statute argued by Hansen on his appeal to the Appellate Division, 3rd Department, was also considered in a habeas corpus petition before U.S. District Judge Gerard E. Lynch of the Southern District of New York. In essence, the argument is that it is easier to sentence a defendant to life without parole if the death penalty had not been sought because a judge, rather than a jury, has the sentencing power. In cases where the death penalty is sought, a jury sentences the defendant. Lynch last week denied the habeas petition filed by Darryl Holland, who, like Hansen, is serving a sentence of life without parole after being convicted of first-degree murder in Westchester County, N.Y. Lynch noted “a perhaps unintended glitch in the New York capital murder statute,” which provides that where a district attorney chooses not to pursue the death penalty in a first-degree murder prosecution — as in the Hansen and Holland cases — the defendant is sentenced by a judge, not the jury, as in a capital case. The statute gives the judge the option of imposing the life-without-parole sentence or a life term with the possibility of parole after 25 years. If the district attorney seeks the death penalty, the sentencing is done by a jury, usually the same group that determines guilt. That jury must unanimously decide whether to impose the death penalty or life without parole. If it cannot reach a unanimous verdict, sentencing reverts to the judge, who must impose the sentence of a life term with possibility of parole after 25 years. The 3rd Department rejected Hansen’s equal protection argument in its ruling on his appeal last January in People v. Hansen, 290 AD2d 47. Hansen was convicted in 1999 and sentenced by Albany County Judge Larry J. Rosen for the Aug. 1, 1996, murder of cab driver Santo Cassaro. The district attorney initially filed a notice to seek the death penalty but later withdrew it. Presiding Justice Anthony J. Cardona, writing for the unanimous court, noted that the equal protection clause of the U.S. Constitution’s 14th Amendment does not require absolute equality of treatment unless there is a fundamental interest or suspect classification at stake; absolute equality is not required where there is a rational relationship between the disparity and a legitimate state purpose. “Both defendant and the People acknowledge that there is no fundamental right to a sentencing jury and that defendants convicted of noncapital first-degree murder are not members of a suspect class. Capital first-degree murder defendants are treated differently from noncapital first-degree murder defendants ‘because of the qualitative difference between death and all other penalties,’” he said, quoting Harmelin v. Michigan, 501 U.S. 957. The provisions of New York’s death penalty statute, which reserve jury sentencing to death-eligible defendants, were rationally related to the state’s goal of linking community values to the determination of punishment in capital cases, he said. In Holland’s case, Judge Lynch concluded that “taken as a whole, and in context, the New York Legislature was not irrational in providing a life without parole sentencing option both where the jury determines the sentence (because the death penalty is in play) and where sentencing is for the judge (because it is not). Each sentencing procedure necessarily operates differently, but the options provided within each sentencing system are rational in light of the different goals and problems pursued in death and non-death cases.”

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