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.