Wednesday, June 29, 2005

Court of Appeals: failure to allow defendant to present "bad reputation" evidence about key witness reversible error

The Court of Appeals handed down three criminal decisions of note today. I'll comment on People v Kelly (a murder-by-bayonet case) and People v Paulman (finding statement given after Miranda warning attenuated from improper pre-Miranda statement) over the next couple of days. For tonight, I'll deal with People v Hanley. The Court in Hanley reaffirmed that,

"[A] party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity."

The trial court must allow such testimony, once a foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity in the community; the weight given to such evidence should be left in the hands of the jury.

(Hanley at 4 [citations omitted].)

This rule allowing general "reputation" evidence for purposes of impeaching credibility stands against the equally "well setlted" rule "that a party cannot call a witness to contradict an opposing witness' answers on cross-examination solely for the purpose of impeaching that person's credibility." (Hanley at 3.) These two rules bothered me during my evidence class at law school, and the passage of time has done nothing to make the rules more intuitive. It seems testimony about a person's general bad reputation for credibility, stated in broad, nonspecific terms, is the least helpful measure of a person's credibility. And yet that is the type of evidence a trial court not only may allow in its discretion, but must allow or else commit reversible error. ( See Hanley at 6 ["Supreme Court incorrectly analyzed the admission of the proposed testimony as purely discretionary. As we made clear in Pavao, a party may introduce reputation testimony as a matter of right if a proper foundation has been established."].) And yet specific factual testimony that contradicts another person's testimony is not allowed to show that the person is lying and thus lacks credibility. This is one of those wrinkles of evidence law that was made to be accepted and not understood.

Tuesday, June 28, 2005

Sixth Circuit: 911 call testimonial under Crawford v Washington

In US v Arnold, the Sixth Circuit held that a 911 call from a crime victim was testimonial because the caller "could reasonably expect that her statements would be used to prosecute" the defendant. (US v Arnold, 2005 Fed App 0269P.) I won't dissect the opinion further, because the Confrontation Blog has already done an excellent job explaining Arnold here. And although I usually constrain this blog to issues of New York criminal law, I think this decision is a very important one for any criminal defense lawyer--practicing in New York or otherwise--to have in his or her pocket post-Crawford, particularly since most of the reported decisions on 911 calls have gone the other way (i.e. courts have found 911 calls nontestimonial and therefore subject to the classic hearsay exceptions). It is nice to have a thoughtful, well-written decision from a Circuit Court of Appeals holding that 911 calls are testimonial to point a trial court towards (even if the case originated in Tennesee--we'll take what we can get).

Monday, June 27, 2005

Second Circuit: Crawford v Washington not applicable to sentencing hearing

The Second Circuit handed down a decision this past Friday holding that "the Sixth Amendment rights of confrontation as elaborated in Crawford v Washington, and of jury factfinding discussed in United States v Booker, do not bar judicial consideration of hearsay testimony at sentencing proceedings." (US v Martinez, -- F3d --, 2005 WL 1492079 [citations omitted].) The defendant in Martinez was convicted of a federal crime, and the Court dealt with the application and factfinding under the Federal guidelines.

There is a good argument to be made that the analysis of the application of Crawford to New York's state persistent felony framework would be different. New York's persistent felony law provides for a hearing to determine the fact of a defendant's prior convictions, and at that hearing the "finding that the defendant has been subjected to a predicate violent felony conviction must be based upon proof beyond a reasonable doubt by evidence admissible to a trial of the issue of guilt." (NY CPL 400.15[7].) The new rule of Crawford v Washington now controls the admissibility of testimonial hearsay at trial; and CPL 400.15 expressly incorporates the rules of evidence at trial to a persistent felony sentencing hearing. Therefore, Crawford should apply to sentencing hearings under New York's persistent felony offender law, despite the Second Circuit's recent decision. If Crawford does apply to persistent felony sentencing hearings in New York, the impact would be profound--currently, prosecutors put their proof in at these sentencing hearings with affidavits, certificates of conviction, and various other hearsay. Requiring prosecutors to start putting on live witnesses to prove up a defendant's prior convictions at persistent felony sentencing hearings will fundamentally change the way these hearings are done in New York.

Thursday, June 23, 2005

Unofficial Stats: May 2005 Term

Here are my unofficial stats for the Fourth Department's May 2005 term, based on the cases posted on the Court's website:

Total criminal cases decided: 87
Reversals or modifications: 11

Of those reversals/mods, 2 were People's appeals (including the Washington case, which I've discussed here). I've already posted about the two most interesting reversals from the packet here (affidavit of mailing testimonial under Crawford v Washington) and here (doctor-patient privilege must yield to defendant's 6th Amendment confrontation rights). Here's the best of the rest:

People v Lee: reversing pro se defendant's conviction where the "record establishes that the court failed to inquire into defendant's 'age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver' of the right to counsel." (Lee, 2005 NY Slip Op 04893 [citations omitted].)

People v Schafer: vacating defendant's sentence where trial court's comments revealed "'the failure of the court to apprehend the extent of its [sentencing] discretion.'" (Schafer NY Slip Op 04874.)

People v Kohl: holding Superior Court Information jurisdictionally defective where crime charged in SCI (Criminal Possession of Stolen Property in the Fourth Degree) was not a lesser included offense of the indicted crime (Burglary in the Second Degree), and thus not includable in the SCI under CPL 195.20. (Kohl NY Slip Op 04904.)

Wednesday, June 22, 2005

Jury selection issues continue to be fertile ground for reversal.

In two cases this term, the Fourth Department reversed lower courts that failed to strike potential jurors for cause when those jurors could not give unequivocal assurances of their ability to be fair and impartial. In People v Davis, (2005 NY Slip Op 04719), a corrections officer told the court, in front of the panel of prospective jurors, that he knew defendant. The lower court instructed the panel that the fact of incarceration did not mean the defendant had previously been convicted of a crime; nevertheless, one prospective juror "responded that she could not promise the court that her 'thought processes' would not be affected by the fact that the correction officer knew defendant." (Davis at 2.) The trial court would not excuse the juror for cause, and the Fourth Department found this to be reversible error. (Id.) In People v Papineau, a prospective juror "expressed doubt concerning his ability to be impartial based upon what he had heard from bar patrons who were present on the night of the incident." (Papineau, 2005 NY Slip Op 04894.) The lower court should have elicited an unequivocal assurance from the juror that he could be fair and impartial--the lower court failed to even seek such an assurance, and the Fourth Deparment reversed. (Id.)

Standing alone, these cases are not much worthy of note--neither breaks new ground, and each simply follows the Court of Appeals precedent set in People v Arnold, (96 NY2d 358 [2001].) However, I highlight Davis and Papineau because they represent one of the few consistently winning criminal appellate issues in the Fourth Department.

An aside about Davis--the Fourth Department, assuming in its decision for the sake of argument that "defendant failed to preserve his contention for our review by a timely objection to that prospective juror", reached the Arnold issue in the interest of justice. Maybe I'm just fixated on preservation issues, but it seems to me that a defendant who challenges a juror for cause registers a "timely objection" to that prospective juror. The fact that the Fourth Department felt the need to even discuss whether the Arnold issue was preserved in Davis--when defendant admittedly challenged that juror for cause--is yet another example of the Fourth Department's rigid tightening of preservation doctrine (a phenomenon I've discussed before here and here).

Monday, June 20, 2005

Attorney may concede client's guilt to lesser included offense as a trial strategy over the client's objection

In another case of seeming first impression from the Fourth Department's May term, the Court held in People v Washington that a defense attorney may concede a defendant's guilt to a lesser included offense at trial over the defendant's objection without violating the defendant's right to make fundamental decisions at trial. (People v Washington, 2005 NY Slip Op 04939.) That bolded bit--that the defendant in Washington strenuously objected to his defense counsel conceding guilt on the lesser included offense--is not mentioned in the Fourth Department's opinion. The Fourth Department merely notes,

Where defense counsel adopted a strategy of conceding defendant's guilt of a lesser included charge 'in the hope that defendant was innocent of the far more serious offense and acquit him thereof,' it is a 'perfectly acceptable strategy which should not be 'second guess[ed] by the court.'

(Washington, 2005 NY Slip Op 04939.)

That's fine, and if the record below was silent as to the defendant's thoughts on his counsel's trial strategy, the Fourth Department's decision would be perfectly acceptable. However, a review of the trial court's decision reveals far more. For starters, the defendant strenuously objected to his attorney's strategy of conceding guilt to the lesser. From the lower court's decision:

[D]efendant and his attorney became engaged in what appeared to be a heated argument. The jury was excused. After a few minutes of continued discussion with his client, counsel indicated to the court that defendant would like to make a statement on the record.

Upon being asked by the court what was on his mind, defendant stated, in sum and substance, that he was innocent of all charges and that he objected to the concession of guilt made by his attorney during the opening statement. Defendant further stated, among many other things, that he never told his attorney that he was guilty and that he had been telling his attorney for weeks, 'please do not try my case like that,' referring to the concession of guilt to the lesser charge.

(People v Washington, 5 Misc 3d 957, 959.)

The Fourth Departmnent's decision would be more understandable if the defendant's lawyer had conceded his guilt to a misdemeanor (as was the case in People v Plaza [133 AD2d 857], cited by the Fourth Department in support of its decision) and thus exposed his client to a limited punishment. However, this was not the case in Washington--as the trial court noted,

As a direct result of counsel's concession, defendant, a predicate felon, faced a minimum of 5 years imprisonment (assuming concurrent sentences) and a maximum of 20 years. That is the sentence range for defendant if he were convicted of the lesser charge. Any decision that exposes a defendant to such punishment is, in this court's view, fundamental.

It may well have been a smart strategy to concede guilt to the lesser included offense. The trial court notes that "[n]o one could seriously argue that counsel would have authority to enter a guilty plea to the lesser charge without defendant's consent. Why should it be different if counsel concedes guilt to the same lesser charge at the beginning of trial? Under both scenarios, it could be said that counsel's decision was wise, given the anticipated proof of guilt." (Id. at 964.)

The trial court raised a very compelling question--why should a defense attorney be allowed to concede guilt at trial over his client's boisterous objection (and thereby subject the client to at least 5 years in state prison) if the attorney could not enter into a favorable plea bargain on the client's behalf before trial without the client's consent? Instead of answering that question, the Fourth Department left out the most relevant, interesting facts from its opinion and decided the case as if the defendant made no objection at trial to his attorney's decision to concede guilt.

Thursday, June 16, 2005

Preservation--a split among the Appeals?

There seems to be a rough split developing among the Judges of the Court of Appeals over preservation requirements. The latest salvo comes from Judge R.S. Smith's concurring opinion in People v Williams, decided earlier this month. The majority held that a jury instruction was erroneous and reversed defendant's conviction on that ground. Judge R.S. Smith thought the jury instruction was fine, but would have reversed on the defendant's alternate ground (the specific issue raised by the defendant is not important for the purposes of this post). Judge R.S. Smith, considering this alternate issue, wrote:

The People's only argument on this branch of the case is that defense counsel's statement 'I will object' was not specific enough to preserve the [...] issue for review. But while we have at times required a more specific objection for preservation purposes, we have never held that simple 'I object' is always insufficient. Here, where the error was egregious, and where the basis for defendant's protest should have been obvious, the general objection fulfilled the purpose of the preservation requirement by alerting the trial judge to the error and giving him a chance to avoid it.

(Williams,[citations omitted].)

In support of his argument, Judge R.S. Smith cites to Judge Rosenblatt's majority opinion in People v Payne, where Judge Rosenblatt wrote, "We decline to . . . elevate preservation to a formality that would bar an appeal even though the trial court . . . had a full opportunity to review the issue in question." (People v Payne, 3 NY3d 266, 273 [2004].) Payne backed away from the strict preservation requirements for a legal sufficiency issue set forth in People v Hines (97 NY2d 56 [2001]). Judge Graffeo wrote the majority opinion in Hines, and dissented from Payne.

For the Fourth Department's part, they show no sign of deviating from their recent trend of tightening up preservation requirements. In two decisions handed down for the May, 2005 term, the Fourth Department refused to reach a defendant's Sandoval argument because "Defendant failed to object to the court's 'ultimate' Sandoval ruling and thus failed to preserve for our review his contention concerning that ruling." (People v Ponder, 2005 NY Slip Op 04757; People v O'Connor, 2005 Slip Op 04902.) It will be interesting to see if the Court of Appeals follows Judges R.S. Smith and Rosenblatt's lead, or whether they follow the Fourth Department down the current path towards reviving the old (and rejected) "exception" preservation requirement (see my previous post on this subject here.)

Tuesday, June 14, 2005

Conviction by court-martial can form the basis of a risk level classification as a sex offender.

In this term's other authored opinion, Justice Pigott wrote for the majority in People v Kennedy, where the Court held that a conviction by court martial can form the basis of a risk level classification as a sex offender. According to the court, the issue is a matter of first impression in New York. The defendant in Kennedy was court martialed and convicted of something called "indecent assault" pursuant to the Uniform Code of Military Justice ("UCMJ"). (Id. at 1.) The Navy notified New York that defendant was a sex offender when defendant relocated here, and he was subsequently classified as a level "2" offender under New York's Sex Offender Registration Act ("SORA"). Defendant argued that "indecent assault" under the UCMJ did not correspond to any sex offense requiring registration under SORA. (Id. at 2.) The Fourth Department disagreed, finding that defendant qualified as a sex offender under the section of SORA defining a SORA-eligible sex crime to include "a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred." (Id.) After finding that "indecent assault" under the UCMJ qualified as a felony in New York because it carried a maximum five-year sentence, the Fourth Department concluded that defendant was "required to register as a sex offender in the jurisdiction in which the conviction occurred" because "Secretary of Navy Instruction 5800.14 provides that a conviction of, inter alia, indecent assault in violation of UCMJ article 134 'shall trigger requirements to notify [s]tate and local law enforcement agencies and to provide information to [the offender] concerning sex offender registration requirements.'" (Id. at 3.)

That last part I don't quite get. I understand if a defendant commits a sex felony in Minnesota and is required to register as a sex offender in Minnesota as a result, then in that situation the defendant's Minnesota sex crime would clearly fall within the definition of a sex crime relied on by the Fourth Department in Kennedy and the defendant could be classified as a sex offender in New York. But is a defendant who is court-martialed for a sex crime by a Navy military court really required to register as a sex offender in the "jurisdiction in which the conviction occurred", i.e. with the Navy? And what would that jurisdiction be in that case--a naval base? Indeed, in Kennedy (and I imagine in most cases where a defendant is found guilty after court-martial of a sex crime), the defendant is effectively kicked out of the "jurisdiction" as a result of the conviction, i.e. dishonorably discharged. In fact, there doesn't appear to be any "registration" requirement flowing from a conviction after court-martial--the "Secretary of Navy" instruction referred to by the Fourth Department in Kennedy does not require the defendant to register with the Navy as a sex offender--it requires the Navy to notify "state and local law enforcement agencies" of the sex crime conviction, and requires the Navy to further inform the defendant of any sex offender registration requirements in that state. (Kennedy at 3.) A defendant convicted of a sex felony by court martial is arguably not required by the Navy to register as a sex offender--the "Secretary of the Navy Instruction" only requires notification and information. Because of that, I find it hard to see how the New York definition of a sex crime relied on by the Fourth Department (defining as a sex crime "a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred") is applicable.

I say all this knowing nothing about military law, so it is possible I'm missing something. It will be interesting to see if the Court of Appeals grants leave to review this issue.

Sunday, June 12, 2005

"Affidavit of regularity/proof of mailing" testimonial under Crawford

The Fourth Department handed down two authored criminal opinions dealing with cases of first impression in an appellate court in New York. I will discuss Justice Pigott's opinion (holding a conviction by court martial can be the basis for a SORA classification) tomorrow. The other was Justice Hurlbutt's opinion in People v Pacer, and dealt with an application of the U.S. Supreme Court's recent watershed decision inCrawford v Washington to an affidavit of mailing. The defendant in Pacer was charged with aggravated unlicensed operation of a motor vehicle in the first degree ("AUO 1st"). A critical element of AUO 1st is "that defendant knew or had reason to know that his New York driving privilege had been revoked." (Pacer at 1-2.) An "affidavit of regularity/proof of mailing" was introduced by the People to prove this element, i.e. that defendant had been notified by mail that his license had been revoked. The Fourth Department held "that the affidavit at issue is testimonial and thus that its admission violated defendant's right to confrontation . . . the United States Supreme court in Crawford 'placed affidavits in the core class of testimonial statements.'" (Id. [quoting People v Capellan, 6 Misc 3d 809].)

It is nice to see the Fourth Department reaching a Crawford issue, but the interesting part of this opinion is what it does not address--whether the defendant preserved the issue in 6th Amendment terms before the lower court. Justice Hurlbutt notes that, because the Pacer case was in the pipeline on direct appeal when Crawford was decided, Crawford "must be applied retroactively to this case." (Pacer at 2.) That's fine as far as it goes. But even if an intermediate appellate court may apply Crawford does not mean it must if the 6th Amendment confrontation issue was not raised below. The Pacer opinion is conspicuously silent on that score, which is unusual for a Court ordinarily focused on preservation issues. It is possible the issue was clearly preserved and thus the preservation issue was not worth mentioning in the opinion; or it could be that the issue was not really preserved, but the Crawford issue was timely and interesting, and the Court wanted to write about it. I will try to obtain the briefs and find out, and will provide an update.

Friday, June 10, 2005

Doctor-patient privilege "must yield to defendant's constitutional right of confrontation."

The Fourth Department handed down its decisions for the May, 2005 term today, and there are a bounty of interesting criminal decisions. More on some of the truly interesting cases this weekend. For tonight, I'll focus on the Court's decision in People v Bridgeland. In Bridgeland, defendant was accused of sexually abusing his girlfriend's 11 year old daughter. At trial, the defendant made an "offer of proof that the complainant had previously made an allegation of sexual abuse against another man but subsequently recanted the allegation to three individuals, i.e. her mother, her grandmother and a psychologist." (Bridgeland at 2.) The trial court did not allow the child to be cross-examined concerning this prior false accusation, finding 1) the defendant failed to offer a good-faith basis for believing the accusations were false, and 2) in any event, the statements to the psychologist were covered by the doctor-patient privilege and thus questioning would not be allowed unless the child witness waived the privilege. (Id. at 2.) The Fourth Department reversed, finding the trial court erred on both issues. The defendant's proffer, which included the victim's "conflicting statements" about the prior allegations, was enough to establish a good-faith basis for inquiry because defendant established "that the allegation 'may have been false.'" (Id. at 2 [emphasis added].)

The more interesting part of the Bridgeland decision involves the interplay between the doctor-patient privilege and a defendant's 6th Amendment confrontation rights. Up to now, no New York appellate court had reached the issue of whether the doctor-patient privilege was trumped by a defendant's confrontation rights. After an extensive discussion of Davis v Alaska (415 US 308) (the United States Supreme Court decision holding that the statutory rights of a witness to have his juvenile offender records kept confidential was outweighed by the defendant's 6th Amendment confrontation right to probe the witness' potential bias), the Fourth Department concluded "that the policy interest underlying the statutory [doctor-patient] privilege must yield to defendant's constitutional right of confrontation." (Bridgeland at 3.) The Court noted that the credibility of the child witness was of central importance in the case, and the defendant's right to confront and cross-examine the witness about her alleged prior false allegations of sex abuse against another man clearly outweighed any statutory rights the child witness had under the doctor-patient privilege.

Bridgeland was just one of many interesting decisions handed down this term dealing with issues of first impression. More this weekend on the others.

Thursday, June 09, 2005

New York Persistent Felony Offender statute constitutional

In a 5-2 decision, the New York Court of Appeals held today in People v Rivera that New York's Persistent Felony Offender statutes are not unconstitutional and do not run afoul of the recent United States Supreme Court decisions in Blakely v Washington and United States v Booker. Judge Rosenblatt delivered the majority opinion, with Judges Kaye and Ciparick filing separate dissents.

The facts are relatively straightforward. Mr. Rivera was convicted of "unauthorized use of a vehicle in the second degree, a class E felony, which carries a maximum sentence of four years imprisonment." (Rivera at 1.) However, because Mr. Rivera was twice previously convicted of a felony, the sentencing court invoked New York's Persistent Felony Offender statutes (popularly known here and elsewhere as the "three strikes and you're out" law) to sentence Mr. Rivera to 15 years to life in state prison.

The majority and dissenters agree on the state of the Supreme Court's 6th Amendment jurisprudence in this area--both conclude that the 6th Amendment requires any fact (other than a prior conviction) used by a judge to elevate a defendant's sentence beyond the maximum allowed for the underlying crime of conviction be found by a jury beyond a reasonable doubt. Where the majority and dissenters differ dramatically is in their respective interpretations of New York's persistent felony offender statutes.

New York's persistent felony offender scheme is set out in CPL 400.20 and Penal Law 70.10. Section 70.10 defines what a "persistent felony offender" is, and section 400.20 sets out the procedure to be followed if a person meeting that definition is to be sentenced as a persistent felony offender. Section 70.10 defines a persistent felony offender as "a person . . . who stands convicted of a felony after having previously been convicted of two or more felonies." (Penal Law 70.10.) If a defendant meets that definition, i.e. is being sentenced for his third felony, the sentencing court may impose a life sentence. However, the enhanced sentence cannot be imposed unless section 400.20 is followed, which provides, "Such sentence may not be imposed unless, based upon evidence in the record of a hearing held pursuant to this section, the court (a) has found that the defendant is a persistent felony offender as defined in . . . section 70.10 of the Penal Law, and (b) is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest." (CPL 400.20.)

Under the majority's view, New York's scheme requires only the fact of two prior felony convictions be proven to qualify a defendant as a persistent felony offender and qualify such a defendant for a life sentence. The additional procedural language in 400.20--that the sentencing court consider the "character of defendant" and "the nature and circumstances of his criminal conduct" is, in the majority's opinion, just a re-statement of the sentencing court's classic sentencing discretion, and serves only to highlight the fact that an enhanced sentence is not mandatory if a defendant has two prior felonies. The fact of the prior two felonies is the fact that sets the new maximum sentence of life; the additional "character and circumstances" language is more like a safety-valve the defendant can utilize to present mitigating evidence for the court to consider in deciding whether to impose the new maximum. Under the majority's view, the fact of two prior felony convictions alone is enough to justify an enhanced life sentence, with no requirement that any additional aggravating facts be found by the sentencing court. In support of this view, the majority cites approvingly to the Fourth Department's recent decision in People v Nelson, 791 NYS2d 236, where the Fourth held a defendant's "prior felony convictions alone were enough to justify defendant's sentence as a persistent felony offender." (Nelson, 791 NYS2d 236 [4th Dept 2005].)

The dissenters fundamentally disagree with the majority's reading of the statute--as Chief Judge Kaye notes in her dissent,

I agree that the statutory scheme the Court describes would pass constitutional muster. The problem, though, is that the statute as construed by the majority was not before today the law in New York. The language of the statute is plain, and reflects the intent of the Legislature, that not every two-time (nonviolent) recidivist is eligible, without more, to be sentenced to an indeterminate life term. Only some are.

(Rivera at 7.)

To the dissenters, the second part of 400.20--requiring the sentencing court to consider circumstances of the crime and the defendant's character--are not merely optional, but a crucial and necessary elevating factor, without which the increased maximum penalty is not triggered. Chief Judge Kaye's dissent points out that section 400.20 requires that, "after determining that the defendant qualifies as a persistent felony offender on the basis of prior convictions, the court 'must then make such findings of fact as it deems relevant to the question of whether a persistent felony sentence is warranted.' The majority nevertheless construes the statute as requiring 'no additional fact-finding beyond the fact of two prior felony convictions. I cannot agree with the Court that the Legislature's 'must' means 'need not.'" (Id at 6 [emphasis in orginal, citations omitted].) Judge Kaye concludes,

We can no longer distinguish our statute as it bears too much of a resemblance to the statutes struck down in Ring and Blakely. 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 for the purpose of enhancing a sentence beyond the statutory maximum, then that statute runs counter to the United States Supreme Court's current interpretation of the Sixth Amendment.

(Id. at 7.)

I come down with the dissenters on this one. A plain reading of the second part of section 400.20--the so-called "character and circumstances" requirement--does not support the majority's characterization of this additional step as merely a chance for defendants to escape an enhanced sentence by presenting mitigation evidence. Indeed, the language of 400.20 requires the court to decide not whether the defendant's character or circumstances of the crime indicate he is fit for society, but rather the sentencing court is required under 400.20 to determine whether "the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest." The determination isn't whether the defendant deserves mercy--it is whether his character and crime are bad enough and dangerous enough to warrant lifetime inprisonment. In Blakely, the United States Supreme Court struck down a sentencing provision that allowed the sentencing judge to enhance a sentence beyond the maximum if the judge determined that the crime was especially "cruel." (Blakely v Washington, 124 S Ct at 2537.) How is New York's statute, which requires the sentencing court to determine if defendant's "character" is sufficiently defective and his "crime" sufficiently bad to deserve additional punishment any different?

Read the Rivera decision here.

For all things Blakely, go here.