New York's Persistent Felony Offender Sentencing Law Ruled Unconstitutional

The United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that "the New York courts’ upholding of the constitutionality of the New York state persistent felony offender statute after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law." Andrew Fine, Paul Wiener, and Martin Lucente of The Legal Aid Society's Criminal Appeals Bureau represented two of the four successful defendants.

The consolidated decisions in Besser v Walsh was a major victory for Andrew Fine, who has challenged the statue at the New York Court of Appeals and the Second Circuit for a number of years. Fine has argued that the New York persistent felony statute unconstitutionally deprives a defendant of the right to have each fact that increases the maximum penalty that a defendant potentially faces submitted to a jury and proved beyond a reasonable doubt. Fine has also lectured on the subject at many CLE presentations and in written practice guides.

Fine told The New York Times that the decision was a judicial reminder of the constitutional role of juries. “It reaffirms the important principle that critical factual determinations that could lead to increased sentences should be made by jurors rather than judges."

Read The New York Times article


The New York Law Journal
Penalties for 'Persistent' Felons Violate Constitution, Circuit Says
By Joel Stashenko

A state statute that permits stiffer sentences for "persistent" felony offenders violates defendants' constitutional right to a jury trial, the U.S. Court of Appeals for the Second Circuit ruled yesterday.

Citing a series of U.S. Supreme Court rulings, especially Blakely v. Washington, 542 U.S. 296 (2004), a three-judge panel unanimously concluded the state scheme vests unconstitutionally broad discretion in judges to set sentences of up to life in prison for offenders deemed to be persistent felons.

"We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York's [Persistent Felony Offender] statute," Judge Ralph K. Winter wrote for the panel.

Under New York's statute, defendants convicted of two previous felonies can be eligible for persistent felon designation and face sentences of a minimum of 15 years and a maximum of life for conviction of a third or subsequent offenses. They could also face far lower penalties if judges choose to sentence them as repeat felons rather than persistent ones.

Sentencing judges make the final decision based on an analysis of the "history and character of the defendant and the nature and circumstances of his criminal conduct." The statute, Penal Law §70.10, also directs the judge to determine if a persistent felony offender designation would be in the public interest.

The statute does not link the penalty to a specific felony crime, as the Penal Law does in statutes governing penalties for first- or repeat-felony offenders.

The immediate effect of yesterday's ruling was not clear.

Second Circuit rulings on New York law are not binding on the state's highest court, the Court of Appeals. The federal panel did note, however, that state court rulings upholding the constitutionality of the persistent felony offender sentencing statute have been "unreasonable" in light of seemingly contrary U.S. Supreme Court decisions in similar cases.

However, federal judges have the authority to issue writs of habeas ordering the release of individual defendants, as was sought in this case. The circuit did not go that far, instead remanding four of the five cases before it to federal district courts for further proceedings.

Jonathan M. Kirshbaum, who represented one of the plaintiffs in the case yesterday, said state trial judges may now be left in uncertainty when weighing whether to pronounce a defendant a persistent felony offender.

"It is really up to the individual judges, what they want to do at this point," said Mr. Kirshbaum, of the Center for Appellate Litigation. "It would be helpful if the [state] Court of Appeals took a new look at this issue to provide guidance to state courts."

Though state prison officials say there are 2,467 inmates now serving sentences in New York as persistent felony offenders, the question of retroactive application was an issue in only one of the five cases decided yesterday by the circuit, that of James Besser.

And as to that plaintiff, the panel seemed to affirm any sentence given to him under the persistent felony offender statute since it was only after 2004 that the U.S. Supreme Court made it clear that Sixth Amendment violations were involved in broad sentencing provision such as those used in New York. That was three years after the state Court of Appeals had affirmed Mr. Besser's conviction.

In striking down in Blakely a similar sentencing scheme in Washington state, the Supreme Court held that "other 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."

According to the circuit yesterday, Blakely made it "unambiguously clear" that any factor that increases a sentence for an offender past the statutory maximum, "no matter how generalized or amorphous," must be found by a jury. Some doubt had existed over that question based on the Supreme Court's earlier ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), the panel conceded yesterday.

The Second Circuit held that state court rulings upholding persistent felony sentences, including the state Court of Appeals' ruling in People v. Rivera, 5 N.Y.3d 61 (2005), fail to recognize the constitutional defect the Supreme Court identified in Blakely and other rulings.

The state Court of Appeals held in Rivera that authority afforded judges in making the history/character/criminal conduct inquiry under the persistent felony offender statute is no different than the usual discretion given to judges at sentencing (NYLJ, June 10, 2005).

The circuit made its ruling in five cases it heard arguments on at the same time on April 16, 2008: Besser v. Walsh, 05-4375-pr; Phillips v. Artus, 06-3550-pr; Portalatin v. Graham, 07-1599-pr; Morris v. Artus, 07-3588-pr; and Washington v. Poole, 07-3949-pr.

The Second Circuit decision will be published tomorrow.

The panel sent the cases involving defendants William Phillips, Carlos Portalatin, Vance Morris and William Washington back to district courts for determinations of whether state court rulings upholding their enhanced sentences were harmless error or whether their release should be ordered.

The crimes that led to the plaintiffs' being found to be "persistent" felony offenders ranged from kidnapping and robbery in a carjacking to purported theft of a wallet at a bus terminal.

During sentencing, judges also noted that defendants often had extensive histories of past criminal behavior, such as Mr. Washington's 57 arrests outside of New York and 15 theft-related misdemeanor and felony convictions within the state, according to yesterday's ruling.

Writs of habeas corpus were granted to Messrs. Portalatin and Washington by district judges. Both were appealed by the state. Writs were denied by other federal judges to Messrs. Phillips and Morris.

Circuit Judge Robert D. Sack and Judge J. Garvan Murtha of the U.S. District Court for the District of Vermont, sitting by designation, joined in Judge Winter's 52-page ruling.

The groups that represented the offenders before the circuit were the Office of the Appellate Division (Mr. Besser); the Legal Aid Society for New York City (Messrs. Phillips and Morris); Appellate Advocates (Mr. Portalatin) and Center for Appellate Litigation (Mr. Washington).

Mr. Kirshbaum, of the Center for Appellate Litigation, said he was somewhat surprised by the referral of Mr. Washington's case back to the district court for an analysis of possible harmless error because the state had not raised the issue before the district court.

"But we are looking forward to going down to the district to show that this wasn't harmless in Mr. Washington's case," Mr. Kirshbaum said.

Richard M. Greenberg of the Office of the Appellate Defender said the ruling was a "bittersweet pill" for him because his client, Mr. Besser, was the only one of the plaintiffs to be denied relief from the ruling.

"I am thrilled that the Second Circuit has found the statute unconstitutional, as we maintained all along, but I am deeply disappointed for my client," Mr. Greenberg said.

He said the issue of the validity of the persistent felony offender sentence enhancers in New York ultimately may have to be resolved by the U.S. Supreme Court or by the state Court of Appeals hearing a new challenge to a sentence. Mr. Greenberg said he was exploring a possible appeal of the circuit ruling to the Supreme Court on behalf of Mr. Besser.

Richard Joselson, supervising attorney in the Legal Aid Society's criminal appeals bureau, said yesterday's ruling created "a murky situation."

"The situation is that the Second Circuit doesn't strike down a New York statute," he said. "The Second Circuit can opine in an individual case whether a Constitution violation has occurred and now any defendants sentenced under the statute, if all else failed, could presumably go into federal court and seek habeas corpus relief. But as a practical matter, it is not clear how New York prosecutors and judges will respond to this."

The state solicitor general within Attorney General Andrew M. Cuomo's office and assistant district attorneys in Brooklyn and Manhattan defended the statute at the circuit.

A state spokesman said yesterday Mr. Cuomo's office is reviewing the decision and would have no immediate comment.