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New York’s persistent felony offender statute withstood a major constitutional challenge Thursday, with a majority of the New York Court of Appeals judges agreeing that a defendant’s prior convictions, and no other facts, result in an enhanced sentence. A defendant had argued that under recent U.S. Supreme Court precedent holding that a convict is entitled to a jury finding on any penalty-increasing fact, the state’s law and the Court of Appeals’ 2001 ruling upholding it were no longer valid. But a five-judge majority disagreed in People v. Rivera, 86, concluding that eligibility for persistent felony offender sentencing is based exclusively on whether a defendant had at least two prior felony convictions. Two dissenters noted that the statute requires judges, before imposing an enhanced sentence, to examine the defendant’s character and the nature of his criminal behavior — factors which they say bring the statute under the purview of recent U.S. Supreme Court holdings. The bedrock issue was whether New York’s persistent felony offender law, which permits a judge to impose an indeterminate life term on convicts with two or more prior felony convictions, remains valid in the face of a string of U.S. Supreme Court decisions casting doubt on its constitutional vitality. In Apprendi v. New Jersey, 530 US 466, the Supreme Court in 2000 held that any fact, other than the fact of a prior conviction, “that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The following year, the Court of Appeals decided People v. Rosen, 96 NY2d 329 (cert denied), holding that the persistent felony offender statute survives Apprendi scrutiny because the only fact exposing a defendant to an enhanced sentence was his felony record. Since then, the U.S. Supreme Court decided Ring v. Arizona, 536 US 584 (2002), where it shot down Arizona’s capital punishment statute because it permitted a judge to impose a death penalty if the judge found aggravating factors and an absence of mitigating factors. The Court later suggested, in Blakely v. Washington, 542 US __, 124 S. Ct. 2531 (2004), that the Sixth Amendment entitles defendants to a jury trial on all facts that can increase a sentence. Against the backdrop of those decisions, William Rivera challenged his 15-year-to-life sentence for a non-violent property crime. Court records show that Rivera was convicted in Brooklyn of unauthorized use of a motor vehicle after he was found in possession of a stolen van. Although the crime normally carries a maximum sentence of 2 to 4 years, Rivera was sentenced as a persistent felon. The enhanced sentence was based on the fact that Rivera had three prior felony convictions and 14 prior misdemeanor convictions. His conviction was upheld by the Appellate Division, 2nd Department, and Judge Victoria A. Graffeo of the Court of Appeals granted leave. At the court, the key point of disagreement between the majority and the dissent was whether Rivera’s prior record was the sole reason he was exposed to an enhanced sentence or whether aggravating factors — the type of factors identified by the Supreme Court in Ring v. Arizona — also came into play. EXERCISE OF DISCRETION Writing for the majority, Judge Albert M. Rosenblatt acknowledged that the persistent felony offender statute contains two prongs, one requiring two prior felonies and another requiring the sentencing judge to consider the defendant’s character and behavior before exercising the discretion to impose an enhanced sentence. However, he said it is the fact of the prior convictions alone that subjects the convict to a longer term. Rosenblatt said the second prong of the statute simply asks judges to exercise their discretion. “Once the defendant is adjudicated a persistent felony offender, the requirement that the sentencing justice reach an opinion as to the defendant’s history and character is merely another way of saying that the court should exercise its discretion,” wrote Rosenblatt in an opinion joined by Judges George Bundy Smith, Susan Phillips Read, Robert S. Smith and Graffeo. The U.S. Supreme Court held in Almendarez-Torres v. United States, 523 US 224 (1998), that Congress could provide for an enhanced sentence based upon the fact of a prior conviction. However, since then a majority of the current justices have expressed disagreement with Almendarez-Torres. “[W]e recognize the Court’s obvious prerogative to overrule its own decisions and we therefore follow Almendarez-Torres until the Supreme Court rules otherwise,” Rosenblatt wrote. DISSENTING OPINIONS Chief Judge Judith S. Kaye and Judge Carmen Beauchamp Ciparick wrote separate dissents, each concurring with the other’s dissent. Kaye argued that the Legislature has not decreed that every three-time felon deserves an enhanced sentence. She stressed that under the statute an enhanced punishment “may not be imposed” without a factual finding that the defendant has at least two priors and that the defendant’s character and history are such that extended incarceration is appropriate to protect the public interest. “Blakely makes clear that any factfinding essential to sentence enhancement must be decided by a jury, even if it is general and unspecified in nature, and even if the ultimate sentencing determination is discretionary,” the chief judge wrote. Ciparick, in her dissent, said “the majority has rewritten the statute.” “Where a statute, like ours, considers facts beyond recidivism that were neither proven to the jury beyond a reasonable doubt nor admitted by a defendant … then that statute runs counter to the United States Supreme Court’s current interpretation of the Sixth Amendment,” she wrote. Brooklyn Assistant District Attorney Jane S. Meyers argued for the prosecution. Erica Horwitz of Appellate Advocates in Manhattan appeared for the defendant. Horwitz said Thursday she will attempt an appeal to the U.S. Supreme Court. Thursday’s ruling comes on the heels of a ruling last week by the 2nd U.S. Circuit Court of Appeals which held in three consolidated cases that at least at the point that Apprendi was decided, the New York persistent felony offender statute was constitutional. The 2nd Circuit, in Brown v. Greiner, 03-2242, did not address the question answered Thursday by the state tribunal — whether Rosen remains good law in the wake of the Apprendi progeny. In Rosenblatt’s opinion, none of the post-Apprendi cases undermine the validity of Rosen.

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