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When a divided U.S. Supreme Court decided Apprendi v.New Jersey three years ago, four dissenting justices warned that the rulingcould unleash a flood of criminal appeals by defendants who had been given lifesentences at the discretion of judges. In Apprendi, the Court struck down a New Jersey hatecrime statute, but also said juries, not judges, must make factual findingsthat could subject criminal defendants to sentences more harsh than thosegenerally allowed for a crime. Nationally, the ruling called into questionstatutes designed to mete out life sentences to persistent felons based onprior crimes, and even raised doubts among scholars and attorneys about thefuture of federal sentencing guidelines. In New York, though, not much happened. In April 2001, thestate Court of Appeals unanimously held that New York’s persistent felonyoffender law was constitutional under Apprendi. The court, in Peoplev. Rosen, 96 NY2d 329, said enhanced sentences under the law arose from adefendant’s prior convictions and nothing else, leaving it outside the boundsof Apprendi. Under New York’s discretionary persistent offender law, setforth in Penal Law � 70.10 and Criminal Procedure Law 400.20(5), an enhancedsentence can be given to felons who have two prior felony convictions and haveserved sentences of at least a year. Once this is established, judges considervarious mitigating and aggregating factors before deciding to impose a sentenceof 15 years to life or 25 years to life. In Rosen, the court essentiallyreasoned that two prior felonies — standing alone — made a defendant eligiblefor an enhanced sentence. Subsequent findings made by a judge amounted to atraditional exercise in judicial discretion, whereby a judge decides on aproper sentence within the permissible range of a statute. In the past year, however, Rosen has come underattack in federal courts and, more recently, by two state Supreme Courtjustices, who in written opinions have said Rosen was incorrectlydecided. Last week, Manhattan Supreme Court Justice John A.K.Bradley said in a ruling that he would not follow the “flawed”holding of state’s highest court. Writing in People v. West, 8529/83,Bradley said a 2002 ruling from the U.S. Supreme Court, Ring v.Arizona, 536 U.S. 584 (2002), which invalidated Arizona’s death penaltyscheme because it allowed judges to decide whether the death penalty waswarranted, further explained the Court’s holding in Apprendi and exposedthe weakness of Rosen. “The [U.S. Supreme Court] held that ‘all factsessential to the imposition of the level of punishment that the defendantreceives — whether the state calls them elements of the offense, sentencingfactors, or Mary Jane — must be found by the jury beyond a reasonable doubt,’” Bradley wrote, quoting Ring. “With this sweepingpronouncement, the Supreme Court implicitly rejected the holding of the Rosencourt.” Bradley said that under Ring, he was obligedto vacate a sentence of 15 years to life for Oliver West and order that he beresentenced for his rape and sodomy conviction. (West has prior convictionsfor assault and battery as well as rape and sodomy.) In doing so, he went astep further than did Acting Manhattan Supreme Court Justice Lewis Bart Stone,who this summer ruled that Rosen “is no longer dispositive” inlight of Ring. Stone, however, issued a lengthy opinion thatimposed a life sentence for the defendant in his case by attempting to construeNew York’s law in a manner consistent with the U.S. Constitution. “You have two state court judges now that have saidthe discretionary persistent offender statute is unconstitutional,” saidJan Hoth of the Center for Appellate Litigation, who represents West. Forher client, she said, Bradley’s ruling could be the difference betweenimminent release or no release. West, 53, has served 20 years in prison;Hoth said he could have received 25 years at most if he were not sentencedas a persistent offender. If Bradley’s ruling is taken as a call to arms byother trial court judges, the state’s prosecutors could find themselves in theuncommon position of having to defend a statute that has been unanimously upheldby the Court of Appeals. “ Rosen is the definitive statement for any NewYork judge and Ring has nothing to do with the Apprendi/Rosendebate,” said Mark Dwyer, chief of the appeals bureau in the ManhattanDistrict Attorney’s Office. “Our view is that the New York Court ofAppeals has spoken, and that every New York judge is obliged to follow what theCourt of Appeals says until the U.S. Supreme Court says somethingdifferent.” The district attorney’s office has already filed a notice ofappeal in West. Though Rosen is just beginning to face scrutiny instate courts, the chief blows to the ruling have been landed in U.S. DistrictCourt for the Eastern and Southern districts. In March, Eastern District JudgeJohn Gleeson, in Brown v. Greiner, 258 FSupp. 2d 68, found that adefendant’s sentence was unconstitutional because it was in part “based onfacts that were not charged in the indictment, submitted to a jury, or provenbeyond a reasonable doubt.” Later, Southern District Judge Alvin K. Hellerstein issueda similar ruling from the bench in Rosen v. Walsh, giving Harry Rosen –the same defendant from the Court of Appeals case — a chance at a newsentence. Those two cases and another one from Hellerstein have beenconsolidated for appeal to the 2nd U.S. Circuit Court of Appeals,but no briefing or argument schedule has been set. “If Rosen were trumped somehow by the federalcourts,” Dwyer said, “we would have to present a defendant’sprior criminal history to the grand jury that indicts and to a sentencing jury,or we would have to change our statute.” The first option, Dwyer said,would be time consuming and costly, and put pressure on prosecutors to plan ona sentencing strategy before even indicting a defendant. Andrew C. Fine, director of the Court of Appeals practiceat the Legal Aid Society and the attorney who represents Rosen, saiddefense attorneys would welcome a new persistent offender statute as long as itdid not do away with judicial discretion. “We would certainly hope that any new legislationwould not change the discretionary component, but require it to be determinedby a jury rather than a judge,” he said. Otherwise, Fine said, New York would be heading towarda “three-strikes” law, which he said “the Legislature has neverseen fit to enact.” If Rosen is eventually invalidated, it is unlikelyto result in an upheaval involving scores of defendants sentenced under thepersistent offender statute. According to research being conducted by Martha G. Rayner,a professor who runs the criminal defense clinic at Fordham University Schoolof Law, 352 defendants have received discretionary enhanced sentences in NewYork in the last 10 years. Only defendants whose direct appeals were ongoing atthe time Apprendi was decided can seek challenges, Fine said.

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