People v. Rivera

Ciparick, J.

(dissenting). Because I believe that Apprendi v New Jersey (530 US 466 [2000]), as reaffirmed and clarified by Ring v Arizona (536 US 584 [2002]), Blakely v Washington (542 US 296 [2004]), and United States v Booker (543 US 220 [2005]), compels a different result, I respectfully dissent from the majority opinion.

The majority offers an interpretation of our discretionary persistent felony offender sentencing statute that purportedly does not violate a defendant’s Sixth Amendment constitutional rights. However, the description as proffered is not consistent with the plain language of Penal Law § 70.10 and CPL 400.20 nor does it comply with the mandates of recent United States Supreme Court holdings. In essence, the majority has rewritten the statute.

My discussion begins with Apprendi v New Jersey. There the United States Supreme Court invalidated a law that allowed a judge to increase a sentence beyond the statutory maximum where the judge determined that the proven offense also constituted a hate crime. That statute clearly required that the judge make a finding of fact of an element beyond the scope of the charged crime. The effect of the statute was to take a typical role of the jury away from it and place it in the hands of the *77judge who would make such findings by the mere preponderance of the evidence.

Judicial factfinding of an element of a crime was not in our opinion the same as determining the appropriateness of enhanced sentencing based on prior felonies. Thus we held in People v Rosen (96 NY2d 329 [2001]) that New York’s discretionary persistent felony offender statute did not offend ApprendV s notion of Sixth Amendment rights. In doing so, we recognized the longstanding principles of granting judges discretion in sentencing and protecting the public from recidivist felons (see Rosen, 96 NY2d at 335). We further found that the statute should be read solely as being triggered by prior convictions (see id.). Only after the prior convictions are apparent does the court look to the second part of our discretionary persistent felony offender statute and consider the “history and character” of defendant to determine whether persistent felony offender treatment is warranted (id.). I believe that this interpretation is no longer viable in light of recent United States Supreme Court cases which have redefined the purview of the Sixth Amendment.

The year after we decided Rosen the United States Supreme Court expanded upon ApprendV s rationale in Ring v Arizona, which overruled Walton v Arizona (497 US 639 [1990]).1 The Arizona statute at issue in Ring and Walton provided that a defendant may not be sentenced to death for first degree murder unless the judge makes further determinations as to the existence of aggravating and mitigating factors, comparable to the “history and character” analysis under our statute. The Court in striking down the statute reiterated that the “dispositive question ... ‘is one not of form, but of effect’ ” (Ring, 536 US at 602, quoting Apprendi, 530 US at 494). The Court further made clear the broad scope of the holding by stating that “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt” (Ring, 536 US at 602). Whereas the maximum *78sentence based on the jury’s findings was life imprisonment, the United States Supreme Court found it improper to permit the trial judge to determine other factors that could result in the imposition of a sentence of death.

The Supreme Court spoke again on this issue in Blakely v Washington, where it invalidated a statute that permitted the judge to consider the level of “cruelty” used in committing the crime for the purposes of enhancing a sentence. The Court stated “[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment’ . . . and the judge exceeds his proper authority” (Blakely, 542 US at 304, quoting 1 J. Bishop, Criminal Procedure § 87, at 55 [2d ed 1872]). Further elucidation on what Supreme Court meant by “statutory maximum” came in Blakely, where it stated that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” (Blakely, 542 US at 303, citing Ring, 536 US at 602). The Court at great length explained that “the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power” (Blakely, 542 US at 308). To the extent that these holdings would likely result in a greater burden on the nation’s court systems, the Court stated “our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice” but rather turns on the need to preserve the rights enumerated by the Constitution (542 US at 313).

This year, the Supreme Court has once again illustrated the renewed strength of the Sixth Amendment when it struck down parts of the federal sentencing guidelines in United States v Booker.2 The Court held that a judicial determination of any factor that elevates the maximum possible sentence above the range authorized by a jury finding of guilt of a particular offense or a defendant’s admission violates the Sixth Amendment *79(543 US at 232). As in its prior cases, the Court reiterated that there is nothing wrong with judicial discretion within a sentence range that was authorized by the jurors’ verdict or admitted by defendant, but once that range changes based on factfinding by the court, the jurors’ role has been diminished and the Sixth Amendment is invoked (543 US at 235). The Court further noted that the increasing reliance on judicial factfinding for purposes of sentencing has increased the judge’s power while reducing that of the jury. “It became the judge, not the jury, that determined the upper limits of sentencing, and the facts determined were not required to be raised before trial or proved by more than a preponderance” (543 US at 236).

Thus, the United States Supreme Court has aggressively redrawn the parameters of Sixth Amendment rights to counterattack what it perceives as a systematic gradual erosion of the role of the juror; which is alarming because it removes the jury from shielding defendants from the State as guaranteed by our Constitution.

Today, we are faced with a renewed challenge to Penal Law § 70.10 and its procedural sister CPL 400.20. Our earlier analysis under Rosen that it is merely a recidivist statute—which alone is acceptable under Apprendi and Almendarez-Torres v United States (523 US 224 [1998])3 —is no longer apt. The Apprendi court framed this exception as one of narrow scope stating “[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” (530 US at 490). However, contrary to the majority’s analysis here, our inquiry does not end at recidivism. Instead recidivism is one of two material findings that must be made before an enhanced sentence can be imposed. Although the majority wishes now to separate itself from this second prong and its explicit role in determining an enhanced sentence, we did acknowledge its existence in Rosen. We held that after finding the requisite prior felonies “the court must consider other enumerated factors to determine whether it ‘is of the *80opinion that a persistent felony offender sentence is warranted’ ” (96 NY2d at 335, quoting CPL 400.20 [9]).

To read Penal Law § 70.10 and CPL 400.20 as solely a recidivist statute disregards its plain language. The second prong explicitly requires a judge to review facts that exceed the scope of those found by a jury or admitted by the defendant, to formulate an opinion as to the “history and character” of the defendant and the “nature and circumstances of his criminal conduct” and to determine whether “life-time supervision will best serve the public interest” (Penal Law § 70.10 [2]; see also CPL 400.20 [1] [b]). A record of the basis for the sentencing court’s findings must also be set forth (see Penal Law § 70.10 [2]; CPL 400.20 [3] [b]). For the majority to state that prior felonies alone are a sufficient basis for sentencing under Penal Law § 70.10 is thus contrary to plain language of the statute (see majority op at 67, 68). This is where, in my opinion, the majority’s rationale fails, as it attempts to fit the discretionary persistent felony offender statute within the narrow recidivism exception of Apprendi and effectively reads out the second prong of the statute.

The statutory scheme described by the majority is simply not that enacted by the Legislature. Had the Legislature intended for the inquiry to end at recidivism, it could, for example, have replicated the language of Penal Law § 70.08, which mandates sentencing for persistent violent felony offenders based solely on recidivism, or it could have used the language of Penal Law § 70.04 or § 70.06 as it relates to second felony offenders and second violent felony offenders. Those statutes do not require, as do Penal Law § 70.10 and CPL 400.20, that to fall subject to an enhanced sentence there needs to be further factual findings by the sentencing judge beyond that of determining the existence and constitutionality of prior convictions beyond a reasonable doubt nor that such further factual findings such as “history and character” be made upon the preponderance of the evidence.4

We can no longer distinguish our statute as it bears too much of a resemblance to the statutes struck down in Ring and *81Blakely. Where a statute, like ours, considers facts beyond recidivism that were neither proven to the jury beyond a reasonable doubt nor admitted by a defendant for the purpose of enhancing a sentence beyond the statutory maximum, then that statute runs counter to the United States Supreme Court’s current interpretation of the Sixth Amendment.

Nor do I agree with the majority that the federal guidelines that survived Booker mimic our persistent felony offender statute (majority op at 68). Our system of sentencing is based on statutory mínimums and máximums that do not come into play in the federal sentencing scheme. Furthermore, the United States Supreme Court held that the guidelines as applied to Booker were unconstitutional and remanded for resentencing (543 US at 267). Nothing in the Booker decision changed the fact that judges cannot impose higher sentences than that of the range supported by the facts found by the jury or admitted by defendant.

The test as articulated by the United States Supreme Court is first to look to whether the sentence imposed exceeds the maximum sentence permissible based solely on the jury’s findings or defendant’s admissions.5 6 If the sentence exceeds the scope of the jury’s findings or a defendant’s guilty plea, the court looks next to see if the increase in sentencing is based solely on the fact of a prior conviction (see Almendarez-Torres, 523 US at 235). If the increased sentence is based on any facts beyond that of a prior conviction, then such facts must be found by a jury beyond a reasonable doubt or else the sentence runs contrary to the Sixth Amendment.

Here, defendant Rivera was subject to a CPL 400.20 persistent felony offender hearing that well exceeded the scope of the jury’s findings and was unquestionably based on more than only recidivism. Rivera was convicted of a class E nonviolent felony, unauthorized use of a vehicle in the second degree, which would have subjected him to an indeterminate period of imprisonment of a minimum of two years and a maximum of four years based on the jury’s findings (and a prior felony conviction) (see Penal Law § 70.06 [3] [e]; [4] [b]). Instead, Rivera received a sentence of 15 years to life in prison based on *82the judge’s application of the discretionary persistent felony offender statute which required additional factual findings made by the judge sitting without a jury and employing a preponderance of the evidence standard. Thus, a defendant, having two prior nonviolent, auto-theft related felonies, upon the conviction of a third such felony, can now be subject to an almost identical sentence as a persistent violent felon under Penal Law § 70.08 (3). That is not what the Legislature provided.

The trial judge in imposing sentence here relied in part on what he determined to be perjury on defendant’s part as well as uncharged marijuana use while in jail. Equally as damaging was the judge’s inference that Rivera was guilty of crimes not charged or not considered by the jury.6 The judge stated:

“I saw the complainant in this case, somebody who I would describe as a working man, . . . had been a painter with the tools of his trade in his van. It was taken from him. Was it taken by the defendant? The People couldn’t prove that. They certainly did prove beyond a reasonable doubt that the defendant used the vehicle . . . .”

The judge further stated:

“But I also look at the circumstances of that crime, and what struck me is what kind of man Mr. Rivera is . . . [T]his drugged individual was only arrested because he doesn’t give a damn about the law [a reference to defendant going through a red light].”

Even more objectionable was this comment:

“And I would note, of course, the evidence did show, although it didn’t go to the juiy, the jury didn’t have to make a finding of it, that you had some damn good burglar’s tools in the van.”

These are facts that, if relevant, must be found by a jury if they will result in a life sentence.

In conclusion, Rosen was the right decision in terms of the constitutional landscape at the time (see Brown v Greiner, 409 F3d 523, 534 [2d Cir 2005] [holding that our interpretation of Rosen was a reasonable application of Apprendi “as understood at the *83time”]). I joined in that decision and do not retreat from it. However, I must now defer to the United States Supreme Court’s interpretation of the Federal Constitution that has developed since our decision in Rosen. The majority fails to recognize that the Supreme Court holdings in Ring, Blakely and Booker represent a significant shift in Sixth Amendment jurisprudence. It is thus evident that a Rosen analysis is no longer appropriate. It is also evident that our discretionary persistent felony offender sentencing statute contravenes the Sixth Amendment to the United States Constitution as it requires additional factfinding—“the functional equivalent of an element of a greater offense” (Apprendi, 530 US at 494 n 19)—beyond that found by a jury or admitted by a defendant.

Accordingly, I would modify the judgment by vacating the sentence and remanding for resentence.

Judges G.B. Smith, Graffeo, Read and R.S. Smith concur with Judge Rosenblatt; Chief Judge Kaye dissents in a separate opinion in which Judge Ciparick concurs; Judge Ciparick dissents in another opinion in which Chief Judge Kaye concurs.

Order affirmed.

. In Walton, the Court found that Arizona’s capital sentencing scheme, allowing a sentencing judge to find an aggravating circumstance, did not violate the Sixth Amendment. However, in light of Apprendi, the Court reversed itself when it revisited the issue in Ring and found “because Arizona’s enumerated aggravating factors [for imposing a death sentence] operate as ‘the functional equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires that they be found by a jury” (536 US at 609, quoting Apprendi, 530 US at 494 n 19).

. The Court found 18 USC § 3553 (b) (1) (providing that a judge must follow the sentencing guidelines unless it is determined that there exists an aggravating or mitigating factor that warrants a different sentence) and 18 USC § 3742 (e) (providing a standard of review for section 3553 sentences) to be unconstitutional. After excising these portions, the Court ruled that the guidelines should he used in an advisory fashion and sentences should be “tailor[ed] ... in light’ of other statutory concerns” (Booker, 543 US at 245-246).

. While the recidivist exception as set forth in Almendarez-Torres is presently good law, its viability has been called into question. In his concurring opinion in Shepard v United States (544 US 13, —, 125 S Ct 1254, 1264 [2005]), Justice Thomas, who was part of the 5-4 majority opinion in Almendarez-Torres, has expressly denounced his vote and feels that the holding is no longer viable in that case in light of the Court’s post-Apprendi holdings.

. CPL 400.20 reads in part:

“Matters pertaining to the defendant’s history and character and the nature and circumstances of his criminal conduct may be established by any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence, and the standard of proof with respect to such matters shall be a preponderance of the evidence” (CPL 400.20 [5]).

. The majority argues that the test should be left to the Appellate Division as one of abuse of discretion (majority op at 68-69). However, the United States Supreme Court specifically questioned that approach as related to sentencing in Blakely as too subjective and “manipulable” (542 US at 308).

. The grand jury issued an indictment for criminal possession of stolen property in the fourth and fifth degrees; however the jury did not consider these charges.