Court of Appeals Upholds Persistent Felony Offender Statute... Again

On February 24, in People v. Quinones, the Court of Appeals reaffirmed its previous holdings that the state's discretionary persistent felony offender [PFO] statute does not violate Apprendi v. New Jersey (530 US 466 [2000]). In Apprendi, the court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (Apprendi, 530 US at 490). New York has a two-step PFO statute, Penal Law 70.10, wherein the court must first determine whether the defendant had been previously convicted of two or more felonies. Then, the court must determine whether "the history and character of the defendant and the nature of the circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public" (70.10[2]). Although it would appear that the second prong authorizes a sentence enhancement made by a judge regarding facts other than those found by the trial jury, the Court of Appeals disagreed and held:

"Taking the foregoing into account, defendant's argument that the higher persistent felony offender range cannot be imposed without judicially-found facts regarding the "nature and circumstances" of defendant's criminal conduct and defendant's "history and character" misses the point. Unlike the sentencing schemes in Apprendi, Ring, Blakely, Booker and Cunningham, all of which effectively provided for judicial factfinding of an element(s) of an offense as a prerequisite to enhancing a sentence beyond the relevant sentencing range, the New York sentencing scheme, after a defendant is deemed eligible to be sentenced as a persistent felony offender, requires that the sentencing court make a qualitative judgment about, among other things, the defendant's criminal history and the circumstances surrounding a particular offense in order to determine whether an enhanced sentence, under the statutorily prescribed sentencing range, is warranted. Stated differently, New York's sentencing scheme, by requiring that sentencing courts consider defendant's "history and character" and the "nature and circumstances" of defendant's conduct in deciding where, within a range, to impose an enhanced sentence, sets the parameters for the performance of one of the sentencing court's most traditional and basic functions, i.e., the exercise of sentencing discretion."

The Supreme Court of the United States has denied cert following the two previous times the Court of Appeals upheld the statute (see People v. Rosen, 96 NY 2d 329 [2001], cert denied, 534 US 899 [2001]; People v. Rivera, 5 NY 3d 61 [2005], cert denied, 546 US 984 [2005]).