In this Emerging Issues commentary, Jay Shapiro, a partner in the New York office of Katten, Muchin, Rosenman LLP, discusses a decision of a three judge panel of the Court of Appeals for the Second Circuit. The panel held that New York's persistent felony sentencing methodology was a violation of a United States Supreme Court ruling. This decision affects almost 2500 New York prisoners that are designated as persistent felony offenders. He writes:
"This statutory scheme for persistent felony offenders provides a powerful tool for the prosecution and it was a significant event when it was overturned on March 31, 2010, in Portalatin v. Graham, 07-1599 PR, when, in a review of three habeas cases, a three judge panel of the Court of Appeals for the Second Circuit held that New York's persistent felony sentencing methodology violated the United States Supreme Court's ruling in Blakely v. Washington, 542 U.S. 296 (2004). Blakely addressed state sentencing rules in the context of the Court's earlier opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000)."
"The en banc review overturned the first panel's decision. It focused on the statute and the interpretations of the New York Court of Appeals of this issue. The statute directs that the determination of persistent felony status take place as follows: first, the prosecution must prove beyond a reasonable doubt that the defendant has previously been convicted of two or more qualifying felonies. N.Y.Crim. Proc. Law § 400.20(1), (5). Next, the court is required to consider the history and character of the defendant and the 'nature and circumstances' of the criminal conduct to determine if a persistent felony offender sentence is justified. In the event that the court concludes that these considerations support imposing the enhanced sentence then it may sentence the defendant to a class A-I sentence."
"In its conclusion, the Second Circuit distinguished the New York statute from that which was deemed unconstitutional in Blakely, noting that in New York 'recidivism findings are the touchstone: the predicate felonies alone expand the indeterminate sentencing range within which the judge has the discretion to operate, and that discretion is cabined only by an assessment of defendant's criminal history. And the Supreme Court has not yet sounded the death knell for recidivist sentencing laws, nor do its precedents counsel the extent to which a sentencing judge may consider facts respecting recidivism to guide the exercise of her sentencing discretion.'"
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