Legal Aid's Chief Attorney Orders Review of Hundreds of Cases In Which Clients May Be Eligible for Habeas Relief
SATURDAY, APRIL 10, 2010

Steven Banks, the Attorney-in-Chief of The Legal Aid Society, ordered the review of hundreds of cases, dating back to 2004, to determine if clients might be eligible for habeas relief under the consolidated decisions in Besser v. Walsh. The United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional in March, 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.

Banks told the New York Law Journal that prosecutors still can seek enhanced prison sentences under another statute for repeat felony offenders, though penalties under that law fall far short of the 15-year-to-life sentences that persistent offenders face upon a third or subsequent felony convictions. "Looking backwards, there are hundreds, not thousands, of cases that need to be reviewed because sentences may have been improperly imposed," he said. "Looking forward, prosecutors would be wise to seek sentences based on the underlying felony and not the longer sentence that is permitted under the [persistent felony offender] statute."

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.


New York Law Journal
D.A.s Urge Revision of N.Y. Felony Statute After Circuit Cites Flaws
By Joel Stashenko
04-08-2010

ALBANY - State prosecutors are urging legislators to rework a statute that provides enhanced sentences for repeat felony offenders to eliminate constitutional infirmities raised by the U.S. Court of Appeals for the Second Circuit.

A three-judge circuit panel found last week that the state's persistent felony offender statute infringes on a defendant's Sixth Amendment right to a jury trial by giving judges too much latitude to sentence offenders to up to life in prison on conviction of a third or subsequent felony.

Under the state law, the sentencing judge makes the determination following a review of the "history and character of the defendant and the nature and circumstances of his criminal conduct."

Monroe County District Attorney Michael C. Green said the persistent offender law, Penal Law §70.10(2), could be rewritten to delete the so-called "history/character/criminal conduct" analysis that judges are mandated to perform, while still retaining sentencing discretion. "It seems to me that a legislative fix would be pretty easy," said Mr. Green, a member of a commission appointed by Governor Eliot Spitzer that recommended a general simplification of sentencing laws for criminal convictions (NYLJ, Feb. 4, 2009). "Just get rid of that language and tell the judge if they have someone with at least two previous felony convictions they may impose the A-1 [15-years-to-life] sentence."

Onondaga County District Attorney William Fitzpatrick said he also favors an "immediate legislative correction" to the uncertainty created by the circuit's ruling in Besser v. Walsh and four similar cases (NYLJ, April 2).

"Were I in a room with my colleagues, I'd say we have to correct it immediately," Mr. Fitzpatrick said.

Assembly Codes Committee Chairman Joseph Lentol, D-Brooklyn, said the circuit ruling may give the Legislature time to re-evaluate the need for the persistent felony offender law in light of the subsequent introduction of determinate sentencing statutes and other laws that have established stiffer mandatory prison terms for felony offenders in the past two decades. "It lends itself to really going to the experts to find out if this is something that needs to be fixed and how it needs to be fixed," said Mr. Lentol, who was also on the Spitzer sentencing commission.

An aide to Senate Crime and Corrections Committee Chairwoman Ruth Hassell-Thompson, D-Bronx, said the senator has an "open mind" to prosecutors' suggestions on the parameters of the persistent felony offender statute. Ms. Hassell-Thompson's counsel said she would be willing to convene a meeting of district attorneys, the defense bar and other interested parties to discuss the issue.

The Second Circuit is not empowered to strike down New York state statutes as unconstitutional. Three times since 2005, the state's highest court, the Court of Appeals, has upheld the persistent felony offender statute in determinations that the circuit panel last week called "unreasonable" in light of federal court determinations about similar sentencing statutes, particularly Blakely v. Washington, 542 U.S. 296 (2004).

However, unless the circuit decision is overturned by the U.S. Supreme Court, federal courts will be able to issue writs of habeas corpus ordering new trials or outright releases of defendants whose sentences have been improperly enhanced under the statute.

Mr. Green said the Second Circuit's decision is a "pretty authoritative statement" about the legality of the persistent felony offender statute. "For a period of time, this decision is going to be the law."

Steven Banks, attorney-in-chief of the Legal Aid Society of New York City, said his office is reviewing hundreds of cases going back to 2004, the year Blakely was decided, in which defendants might be eligible for habeas relief under Besser.

Mr. Banks said prosecutors still can seek enhanced prison sentences under another statute for repeat felony offenders, though penalties under that law fall far short of the 15-year-to-life sentences that persistent offenders face upon a third or subsequent felony convictions. A first-time felony offender would face a 1 1/3-to-four-year sentence upon conviction of a Class E felony, for instance (Penal Law §70.00), while a second-time offender for a Class E felony would face a 1 1/2-to-four-year sentence (Penal Law §70.06). A third-time offender, at least theoretically, could face the 15-year-to-life sentence under the persistent felony offender statute.

"Looking backwards, there are hundreds, not thousands, of cases that need to be reviewed because sentences may have been improperly imposed," Mr. Banks said. "Looking forward, prosecutors would be wise to seek sentences based on the underlying felony and not the longer sentence that is permitted under the [persistent felony offender] statute."

There also is a separate statute (Penal Law §70.08) that applies to persistent violent felony offenders. It contains no character or crime analysis, but mandates the imposition of a sentence of 20 years to life upon a third conviction of a serious violent felony.

The Department of Correctional Services estimated Monday that there are at most 540 inmates serving time as persistent felony offenders, or about one-quarter the number of inmates who are serving time as persistent violent offenders. The status of persistent violent offenders was not affected by the Besser decision.

'A Stark Reality'

Warren County District Attorney Kathleen Hogan said the application of the persistent felony offender statute in her county is now in a state of uncertainty.

"There is a stark reality that as a district attorney, I now will either not seek a PFO [persistent felony offender] determination or I will ask the sentencing court to empanel a jury in those limited cases where I think a PFO is warranted for the public safety," Ms. Hogan said in an interview. "I think the court would have the power to empanel that jury under the Judiciary Law."

Ms. Hogan said she believes §2-b(3) of the Judiciary Law, which allows judges to "devise and make new process in forms of proceedings necessary to carry into effect the powers and jurisdiction possessed by it," could be used to meet the Second Circuit's objections by seating a jury to decide the imposition of enhanced persistent offender penalties.

"This decision says a jury must decide it," Ms. Hogan said. In cases where she believed persistent felony offender status was warranted, "I will ask the court of record to empanel a jury on that issue. And won't that be fun to litigate on appeal?" she said.

Ms. Hogan said she would leave it up to the trial judge whether to let the jury that determines guilt hear evidence relevant to sentencing or to select an entirely new jury.

"That certainly would be an interesting approach," said Mr. Banks, although he would not discuss the issue in detail.

Mr. Fitzpatrick, the Onondaga County district attorney, said that when he was a defense attorney he would have preferred to "take my chances" with a judge at sentencing rather than having a jury hear testimony about a client's past wrongdoing.

Ms. Hogan, the president of New York State District Attorneys Association, said her group was reviewing the ruling and had not reached a consensus about its position.

She noted that the circuit remanded four of the five cases decided in Besser back to district courts, and that any appeals to the U.S. Supreme Court would have to wait until those matters are decided.

The circuit asked the district court to determine if the error it identified in the cases was harmless, which would involve a determination of whether the defendants would have faced a similar sentence whether or not the persistent-offender law was applied. If so, they would not be eligible for release.

All four of the remanded cases were prosecuted by the Brooklyn District Attorney's Office. A spokesman declined to comment.

A spokesman for the New York Attorney General's Office, which defended the statute in the federal court, said the circuit's ruling was under review.

In any case, Mr. Fitzpatrick suggested that a legislative "fix" should not be that difficult to obtain.

"Guys with multiple felony offenses don't seem to engender a lot of sympathy with the Legislature," he said.