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.