Brown v. Greiner, 01-CV-2528 (JG).

• Citation: 258 F.Supp.2d 68
• Decision Date: 27 March 2003
• Docket Number: No. 01-CV-2528 (JG).,01-CV-2528 (JG).
• Parties: Nelson BROWN, Petitioner, v. Charles GREINER, Superintendent, Green Haven Correctional Facility, Respondent.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

258 F.Supp.2d 68 Nelson BROWN, Petitioner,
v.
Charles GREINER, Superintendent, Green Haven Correctional Facility, Respondent. No. 01-CV-2528 (JG). United States District Court, E.D. New York. March 27, 2003.

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Erica Horwitz, Lynn W.L. Fahey, Appellate Advocates, New York City, for Petitioner.

Charles J. Hynes, District Attorney, Kings County by Tziyonah M. Langsam, Brooklyn, NY, for Respondent.

AMENDED MEMORANDUM AND ORDER

GLEESON, District Judge.

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). For example, defendants convicted of a class D felony (like the petitioner in this case) must receive a minimum period of imprisonment of at least 12 years, but it may not exceed 25 years. Id. 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 § 70.10(1)(a)-(c). As an enhanced penalty for such offenders, § 70.10 provides that, in lieu of the sentence otherwise authorized by the penal law, persistent felony offenders "may" be sentenced as though the offense of conviction were a class A-1 felony. Id. (emphasis added). For defendants like the petitioner here, the enhancement is severe. As a defendant convicted of a class D felony, he faced a maximum of seven years in prison;¹ as a persistent felony offender, he faced a minimum of 15 years (even longer than the mandatory enhancement) and a maximum sentence of life in prison.

Unlike the enhanced sentences prescribed by the persistent violent felony

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offender provision, which again are mandatory, the enhancement under § 70.10 does not necessarily follow once a defendant is found to have the requisite prior convictions. Rather, another step is required. After the defendant is determined to be an eligible recidivist, the sentencing court must conduct a hearing to determine whether "it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest." Id. at § 70.10(2); see also N.Y.Crim. Proc. Law ("CPL") § 400.20. Only if the court reaches that "opinion" and supports it with sufficient factual findings may the enhanced (i.e., A-1 felony) punishment be imposed. This form of sentence enhancement is therefore referred to as the "discretionary" persistent felony offender punishment.

The central issue in this case is a constitutional attack on the discretionary persistent felony offender statute. Petitioner Nelson Brown contends that the sentence imposed upon him under that statute violated the rule announced by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). I agree. New York's discretionary persistent felony offender statute subjected Brown to a term of imprisonment that more than doubled the statutory maximum sentence he faced based on the jury's verdict. The enhanced sentence was based on a judge's factual findings about Brown's personal history and character. Put another way, it was based on facts that were not charged in the indictment, submitted to a jury, or proved beyond a reasonable doubt. This violated the rule in Apprendi. Id. at 490, 120 S.Ct. 2348. Since Brown raised his claim on direct review in state court, which denied it on the merits, there is no procedural impediment to his reliance on it here. Brown is thus entitled to habeas relief. I hereby grant the petition and issue the writ.

BACKGROUND

A. Brown's Conviction

On the evening of January 15, 1996, a group of men gathered outside Brown's apartment. One person in that group had apparently shot Brown's brother earlier that day, and Brown feared for his own safety, so he and three of his friends inside his apartment, Andrew Tucker, Rodney Green and McKinley Miller, armed themselves and ran up to the roof. Shortly thereafter, a gunfight erupted between Brown (and his friends on the roof) and the men on the street below. During the gunfight, a stray bullet fired from the street went through the window of a downstairs apartment and struck a young boy, who suffered some brain damage and vision loss in one eye. No one else was injured.

After learning that the boy had been shot, Brown took the guns he and his friends had used and threw them in the garbage. Later that night, he went to the police with the boy's mother and turned himself in. The police arrested Brown and searched his apartment, where they seized from a locked hallway closet a firearm, ammunition, drugs, and a large amount of cash. Before trial, however, this evidence was suppressed because neither Brown nor his mother had voluntarily consented to the search. See Trial Tr. 311-16.²

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Brown and each of his friends were charged with thirteen separate crimes: attempted murder in the second degree, two counts of assault in the first degree, one count of attempted assault in the first degree, one count of reckless endangerment in the first degree, and four counts each of criminal possession of a weapon in the second degree and four counts of criminal possession of a weapon and in the third degree. Tucker waived a jury trial and was convicted of criminal possession of a weapon in the second degree. The other three defendants went to trial together, but their cases were tried to two different juries because Green argued that he was never on the roof, whereas Miller and Brown argued the defense of justification. Green's jury found him guilty of assault, reckless endangerment, and criminal possession of a weapon in the second and third degrees. The other jury acquitted Brown and Miller on all charges except one count of criminal possession of a weapon in the third degree, based on the gun possessed by Tucker.

Tucker was sentenced as a youthful offender to probation. Green was sentenced as a second felony offender to concurrent terms of imprisonment, the longest of which were ten years in prison for assault and criminal possession of a weapon in the second degree. Miller was sentenced, based on two juvenile offenses and three prior violent felony convictions, as a persistent violent felony offender (i.e., pursuant to N.Y. Penal Law § 70.08) to a term of imprisonment of 16 years to life.

B. Brown's Sentencing

Brown's sentencing spanned several years. He was first sentenced in 1997 as a discretionary persistent felony offender (i.e., pursuant to N.Y. Penal Law § 70.10) to fifteen years to life imprisonment. The Appellate Division overturned that sentence because the sentencing judge had failed to make the factual findings required by New York law. The sentencing court resentenced Brown in 2000, again as a discretionary persistent felony offender and to the same sentence, after making the required findings. The resentencing was affirmed by the Appellate Division. Because the details of his sentencing are central to Brown's Apprendi claim, they are set forth below.

1. The First Sentencing

Prior to Brown's sentencing, the court, on its own motion pursuant to N.Y. CPL § 400.20(3), initiated a hearing to determine whether Brown should be sentenced as a persistent felony offender. See Hr'g Not. The court's action was based on Brown's prior convictions and assorted facts and circumstances surrounding his present and prior convictions. As for prior felony convictions, the court first noted that: (1) in 1983, a jury in Kings County convicted Brown of robbery in the second degree, assault in the second degree, and assault in the third degree, for which he was sentenced to concurrent two and one-third to seven-year terms of imprisonment, of which he served more than five years before being paroled in September 1988;

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and (2) in 1992, Brown pled guilty in federal court in West Virginia to conspiring to transport firearms and illegal drugs, for which he was sentenced to three years in prison, followed by five years of supervised release. The court also observed that Brown had been convicted of attempted petit larceny in 1981. Id. at 4-6.

In the Notice of Hearing, the court also identified several "underlying facts for [Brown's prior] offenses and other matters pertaining to [Brown's] history and character and criminal conduct." Id. at 6. These facts included: (1) the circumstances underlying his federal conviction, including his alleged assault of a law enforcement officer; (2) Brown's present conviction violated the conditions of his federal supervised release term; (3) the gun, drugs, and cash found in the closet in Brown's apartment, which had been suppressed at trial; and (4) the circumstances surrounding the present conviction, including...