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February 25, 2009

New York's highest court rejects again Sixth Amendment challenge to its persistent felony offfender law

A helpful reader alerted me to a new opinion from the New York Court of Appeals, which turns down yet again a Sixth Amendment attack on New York's persistent felony offender sentencing scheme.  Here is how the unanimous opinion in NY v. Quinones, No. 14 (N.Y. Feb. 24, 2009) (available here), gets started:

This appeal presents another Apprendi challenge to New York’s discretionary persistent felony offender sentencing scheme. The primary issue before us is whether, in light of Cunningham v California (549 US 270 [2007]), this sentencing scheme violates Apprendi and defendant’s due process and Sixth Amendment rights.  We again uphold the constitutionality of New York’s discretionary persistent felony offender sentencing scheme and further hold that defendant’s constitutional rights were not violated.

Significantly, this latest Quinones ruling from the New York Court of Appeals does not address or even mention the federal habeas ruling in Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here), in which EDNY District Judge John Gleeson essentially disagreed with a New York's state court decision that the state's discretionary persistent felony offender statute is constitutionally sound (discussed here). 

In Portalatin, Judge Gleeson concluded that the Supreme Court's work in Cunningham confirmed the unconstitutionality of New York's law.  But in Quinones the New York Court of Appeals reads Cunningham and Ice to confirm its prior conclusion that there are no constitutional problems with New York's sentencing structure.  Assuming the defendant in Quinones seeks cert., it is interesting to speculate as to whether this state/federal split of authority might lead the Justices to make yet another trip into the crazy mixed-up world that is Apprendi-land.

February 25, 2009 at 04:41 PM | Permalink


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It's important to note that an additional federal judge, Judge Koeltl in the SDNY, also held that the statute was unconstitutional in light of Blakely. See Washington v. Poole, 507 F.Supp.2d 342 (SDNY 2007). Portalatin and Washington were consolidated with three other cases on appeal. The appeal was heard before the Second Circuit on April 16, 2008, and is still pending. I would believe that the Second Circuit's decision will definitely have an impact on whether the Supreme Court grants cert.

Posted by: JK | Feb 26, 2009 10:02:54 AM

Thanks for the update, JK. I hope the Second Circuit figures out what it wants to do with this matter sooner rather than later.

Posted by: Doug B. | Feb 26, 2009 12:33:04 PM

Fantastic look at what's going on inside the The New York Court of Appeals.

Posted by: New York Courts | Feb 28, 2009 10:49:40 PM

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