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June 9, 2005

New York's highest court upholds state's felony offender law!

In a major state Blakely ruling — which addresses in a slightly different procedural posture the issues considered last week on habeas by the Second Circuit in Brown (basics here, commentary here) — the New York Court of Appeals in People v. Rivera, No. 86 (N.Y. June 9, 2005) (available here) has upheld the constitutionality of the state's persistent felony offender statutes.

Rivera is rich and interesting in so many ways (in part because of two nuanced dissents).  The decision mostly rests on a reaffirmation of the court's prior interpretation that the state's persistent felony offender statutes requires "no additional fact-finding beyond the fact of two prior felony convictions" for an enhanced sentence.  But a wondrous footnote 8, which walks through some of the fact/judgment ideas I developed in this recent post, provides (perhaps) a back-up justification for the ruling:

In New York, the exercise of this type of discretion [in applying the felony offender enhancement] has never fallen to juries, except in the unusual context of capital cases.  In Apprendi, [Ring, Blakely and Booker] all of [the] prohibited judicial findings relate to the crime for which the defendant was on trial and, as quintessential fact questions, would properly have been subject to proof before the jury, in stark contrast to traditional sentencing analysis of factors like the defendant's difficult childhood, remorse or self-perceived economic dependence on a life of crime (cf State v Rivera, 102 P3d 1044, 1058 [Haw. 2004] [distinguishing between "intrinsic" aspects of the crime itself, which must be proved to the jury, and "extrinsic" characteristics of the defendant, which are subject to judicial determination]).

Although we do not rest our decision on it, we note that the prohibited findings in these Supreme Court cases are thus readily distinguishable from the subjective determination by the sentencing court operating under our recidivism statutes in this case.  Our statutes contemplate that the sentencing court — after it has adjudicated the defendant a persistent felony offender — will consider holistically the defendant's entire circumstances and character, including traits touching upon the need for deterrence, retribution and rehabilitation unrelated to the crime of conviction.  This is different from the type of fact-finding involved in Apprendi.

June 9, 2005 at 01:11 PM | Permalink

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Comments

I am a defense attorney employed by the Legal Aid Society in Brooklyn, New York.

Posted by: Adrian Lesher | Aug 7, 2005 12:49:29 PM

I am currently studying for the July 2008 Bar Exam and wonder whether prior felonies adjudicated outside of New York meet the 2 prior felonies requirement.

Thank You for Your Time,

Aaron Shapiro
Benjamin N. Cardozo Class of 2008

Posted by: Aaron Shapiro | Jul 1, 2008 1:38:30 PM

I am currently studying for the July 2008 Bar Exam and wonder whether prior felonies adjudicated outside of New York meet the 2 prior felonies requirement.

Thank You for Your Time,

Aaron Shapiro
Benjamin N. Cardozo Class of 2008

Posted by: Aaron Shapiro | Jul 1, 2008 1:39:20 PM

my husband who is in prison as a persisten felon,which shouled have been sentenced as a predicate felon is trying to find out is the statute still en affected that happen on 09-01-1978 l. 1978 chapter 481 in the penal law.he was arrested -07-17-1978 and charge with c-felony robbery 2 .lestlaton appoved the law on 07-20-1978 the law went in affecte 09-01-1978 for persisten felon ,so as we see it there is no way they can charge him as a persisten felon,mind you he does has a 1985 possion wepond 3rd and was sentences as conceron d felon violet which he recvied 2-5.now the lates charger was manluster 1 b felony plea 10-life and they sentence him as persisten felon on 03-06-1988.now we are trying to see if we can get 440.20 motion to set sentence aside ,because of violated statute,can you please get back to me concerning this my husband has been in prison for twenty years and he was the codefenden to the person who commited the crime,and they both hold the same crimal record as wear as the other person only recived ten - twenty as where as the statue had been all ready en effect for peredicate and mt husband got caught up in the change of the law.can you offer me any advice on this if so i can be reached at www,[email protected]

Posted by: ann | Sep 28, 2008 5:59:56 PM

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