Besser v. Walsh, 02 Civ. 6775 (LAK) (AJP) (S.D.N.Y. 11/26/2003), 02 Civ. 6775 (LAK) (AJP).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtAndrew J. Peck
PartiesJAMES BESSER a/k/a JAMES ZERILLI, Petitioner, v. JAMES WALSH, Superintendent, Respondent.
Decision Date26 November 2003
Docket Number02 Civ. 6775 (LAK) (AJP).

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JAMES WALSH, Superintendent, Respondent.
02 Civ. 6775 (LAK) (AJP).
United States District Court Southern District of New York.
November 26, 2003.

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Lewis A. Kaplan, United States District Judge:

In Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.) (hereinafter "Besser I"), familiarity with which is assumed, I recommended denial of Besser's habeas claims challenging his conviction for enterprise corruption, while reserving decision on Besser's habeas claim challenging his persistent felony offender sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) (Dkt. No. 1: Pet. ¶ 13, incorporating Dkt. No. 1: Appendix ["App."]: Besser Ct. App. Br. at A72-85). Judge Kaplan affirmed my Besser I Report and Recommendation on November 13, 2003, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003). (See also Dkt. No. 20: 11/13/03 Order). This Report and Recommendation now addresses Besser's Apprendi sentencing claim.

For the reasons set forth below, this Court joins two district judges in this Circuit (Eastern District Judge Gleeson and Southern District Judge Hellerstein) and two state court judges

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in finding that New York's persistent felony offender statute violates Apprendi; accordingly, Besser's Apprendi habeas claim should be granted and the State directed to re-sentence Besser consistent with this Report and Recommendation.

The Court notes that these decisions holding that New York's persistent felony offender sentence-enhancing statute (Penal Law § 70.10) violates Apprendi will not open the floodgates to claims by other petitioners:

According to research being conducted by Martha G. Rayner, a professor who runs the criminal defense clinic at Fordham University School of Law, 352 defendants have received discretionary enhanced sentences in New York in the last 10 years. Only defendants whose direct appeals were ongoing at the time Apprendi was decided [June 26, 2000] can seek challenges. . . .

Tom Perotta, "Court of Appeals' Persistent Offenders Ruling Faces Challenges by Other Judges," N.Y.L.J., Nov. 17, 2003, at 1, 8.



On November 19, 1994, the jury found Besser guilty of enterprise corruption, Penal Law § 460.20, based on his membership in the Mafia and three "pattern acts." "All three of the crimes [pattern acts] for which Mr. Besser was found guilty stem from his . . . involvement with . . . Steven Lane, the former owner of a C-Town-turned-Associated supermarket in Brooklyn." (Dkt. No. 17: Besser 1st Dep't Br. at 4.) The first degree robbery charge (Pattern Act Four) involved Besser's participation in the robbery of that supermarket. "The second-degree grand larceny charge [Pattern

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Act Seven] involved money Lane . . . paid to Mr. Besser's co-defendant, Jerry Ciauri, for `protection,' and groceries Mr. Besser . . . took from the supermarket without paying. The fourth-degree grand larceny charge [Pattern Act Nine] involved . . . money Lane gave to Mr. Besser in exchange for a number of checks that bounced. . . . On the basis of these three `criminal acts,' Mr. Besser was found guilty of enterprise corruption. . . ." (Besser 1st Dep't Br. at 4-5, 27; see Trial Transcript ["Tr."] 6776-801.)

"Enterprise corruption is a class B felony." Penal Law § 460.20. Without enhancement, the sentence for a class B felony is an indeterminate sentence with a maximum of three to twenty-five years imprisonment and a minimum of between one year and one-third of the maximum term (i.e., 8-1/3 years). Penal Law § 70.00(1)-(3); see also pages 59-60 below.


On September 7, 1995 and November 3, 1995, Justice Fried heard testimony and arguments regarding whether Besser should be adjudicated a persistent felony offender under Penal Law § 70.10.2 (Dkt. No. 17: 9/7/95 & 11/3/95 Hearings.) Besser presented one witness, the attorney

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who had represented Besser at his 1984 Richmond County guilty plea allocution, and argued that Besser had been coerced to plead guilty in the Richmond County case in violation of his Sixth Amendment rights. (11/3/95 Hearing Tr. at 3-29, 36-40.) Besser's defense counsel, Peter Quijano, also argued that the court should exercise its discretion and not sentence Besser as a discretionary persistent felony offender, since Besser was only a "follower." (Id. at 40-45, 54-56.) Quijano suggested that a sentence of twelve and a half to twenty-five years as a predicate felon is a "serious sentence" and sufficient, and thus it was not necessary to sentence Besser as a persistent felony offender. (Id. at 43-44.)

On December 6, 1995, Justice Fried issued a written decision adjudicating Besser a persistent felony offender under Penal Law § 70.10. (Dkt. No. 17: 12/6/95 Justice Fried Opinion.) Justice Fried found two prior felony convictions: Besser was convicted in the United States District Court for the District of Maryland of federal counterfeiting offenses (18 U.S.C. §§ 472, 474, & 2) on January 20, 1982 and sentenced to four years in prison, and on July 17, 1984, Besser pleaded guilty in Supreme Court, Richmond County, to third degree attempted possession of a weapon and was sentenced to 1-1/2 to three years in prison. (12/6/95 Justice Fried Opinion at 4.)

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In addition, based on Besser's 1976 through 1993 arrests, convictions (including additional misdemeanor convictions), and parole violations, as well as Besser's involvement with organized crime since 1979, and information relating to Besser's murder attempts (not charged in the present case) and a "brutal beating" for which charges were pending in New Jersey, Justice Fried found, as required by Penal Law § 70.10(2), that Besser's "`history and character'" and "`the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision is required.'" (12/6/95 Justice Fried Opinion at 2, 8-15.)

On December 11, 1995, Justice Fried sentenced Besser, as a persistent felony offender, to fifteen years to life imprisonment.3 See People v. Ciauri, 266 A.D.2d 164, 164, 699 N.Y.S.2d 341, 342 (1st Dep't 1999). (See also Dkt. No. 17: Besser 1st Dep't Br. at 29.)

Besser's Appeal to the New York Court of Appeals

Represented by the Office of the Appellate Defender, Besser's November 30, 2000 brief to the New York Court of Appeals asserted for the first time that the trial court had violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), by finding, by a preponderance of the evidence, that Besser's character and the nature of his criminal conduct warranted a harsher penalty (the "Apprendi Claim"). (Dkt. No. 1: App.: Besser Ct. App. Br. at A72-854; App.: Besser Ct. App. Reply Br. at A316-21.)

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On May 1, 2001, the New York Court of Appeals unanimously affirmed Besser's conviction, addressing Besser's Apprendi claim in a single paragraph, as follows:

Further, as Besser failed to raise his challenge to the constitutionality of the discretionary persistent felony offender sentencing statute before the sentencing court, the issue is not properly before us for review (see, People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407 [(2001)]). His remaining claim of sentencing error has been reviewed and determined to be lacking in merit.

People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 54 (2001).


Besser claims that the enhancement of his sentence under the discretionary persistent felony offender sentence provisions, set forth in Penal Law § 70.10 and C.P.L. 400.20, violated his right to trial by jury under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). (Dkt. No. 1: Pet. ¶ 13, incorporating Dkt. No. 1: App.: Besser Ct. App. Br. at A72-85.)


New York's sentencing structure provides for enhanced sentences for second felony offenders, and for persistent felony offenders (i.e., someone who has two or more prior felony convictions).

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A second felony offender is, as the name implies, someone who has a prior felony conviction. Penal Law §§ 70.04, 70.06.6 In such a case, the sentencing court must impose an enhanced sentence, based solely on the fact of the prior felony conviction. (See pages 58-59 below.)

New York's two persistent felony offender sentence-enhancing statutes recently were aptly summarized by Judge Gleeson, as follows:

New York has two sentence-enhancing statutes for persistent felony offenders. One is the persistent violent felony offender provision in N.Y. Penal Law § 70.08, which practitioners of criminal law in New York often refer to as the "mandatory" one. That statute applies to defendants who stand convicted of a violent felony (as defined in N.Y. Penal Law § 70.02) and have previously been convicted of two or more predicate violent felonies (as defined in N.Y. Penal Law § 70.04(1)(b)). Such defendants receive an indeterminate sentence of imprisonment, the maximum of which must be life. Minimum terms are prescribed by the statute as well and vary depending on the grade of the offense of conviction. See N.Y. Penal Law § 70.08(3). . . . Under § 70.08, "the court must impose" an enhanced penalty once it finds that the predicate convictions occurred, id. at § 70.08(2) (emphasis added), hence the use of the shorthand "mandatory" to describe that form of sentence enhancement.

The second persistent felony offender statute is N.Y. Penal Law § 70.10. This statute is designed to provide enhanced punishment for recidivists who fail to qualify as mandatory persistent violent felony offenders under § 70.08. It characterizes as a "persistent felony offender" any defendant who stands convicted of a felony and has two prior felony convictions (whether or not they are for violent felonies) as defined in the statute. See N.Y. Penal Law §...

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