People v. Rivera

• Decision Date: 09 June 2005
• Citation: 5 N.Y.3d 61,833 N.E.2d 194
• Parties: The PEOPLE of the State of New York, Respondent, v. William RIVERA, Appellant.
• Court: New York Court of Appeals Court of Appeals

833 N.E.2d 194

5 N.Y.3d 61

The PEOPLE of the State of New York, Respondent, v. William RIVERA, Appellant.

Court of Appeals of New York.

June 9, 2005.

Erica Horwitz, New York City, and Lynn W.L. Fahey for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Jane S. Meyers, Leonard Joblove and Ann Bordley of counsel), for respondent.

Mischel, Neuman & Horn, P.C., New York City (James E. Neuman of counsel), and Richard D. Willstatter for New York State Criminal Defense Lawyers and another, amici curiae.

OPINION OF THE COURT

ROSENBLATT, J.

Defendant asks us to overrule People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], in which we sustained the constitutionality of Penal Law § 70.10 and Criminal Procedure Law § 400.20(5), the persistent felony offender statutes. After studying the Supreme Court's recent cases derived from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 [2000], we uphold Rosen, the statutes and defendant's sentence as a persistent felony offender.

Procedural Background

A jury convicted defendant of unauthorized use of a vehicle in the second degree, a class E felony (Penal Law § 165.06), which carries a maximum sentence of four years imprisonment (Penal Law § 70.00[2][e]). The People moved for a persistent felony offender sentence, so as to treat defendant's class E conviction as a class A-I felony (Penal Law § 70.10[2]). This enhancement authorizes an indeterminate sentence with a maximum of life imprisonment (Penal Law § 70.00[2][a]; [3][a][i]). Defendant objected that the sentencing procedure violated his jury-trial rights under Apprendi. Relying on Rosen, the court overruled defendant's objection and held a hearing, at which the People presented evidence of the defendant's prior felony convictions. After the court was satisfied beyond a reasonable doubt that defendant had been previously convicted of at least two felonies, it declared defendant a persistent felony offender (CPL 400.20[5]).

The court then began the next phase of the proceeding, in which it heard argument concerning defendant's history and character, and the nature and circumstances of his criminal conduct, to determine whether "extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest" (CPL 400.20[1]). Both sides submitted presentence reports regarding defendant's history and character. In arguing for a recidivist sentence, the People presented evidence that defendant had three prior felony convictions and 14 misdemeanor convictions, in addition to the two felonies that underlay his persistent felony offender status. The People also contended that defendant had used multiple aliases, had failed many times to comply with probation and parole conditions, had an ongoing drug addiction and would be unlikely ever to give up the lifestyle he supported by crime.

In opposition, defense counsel argued that defendant was not actively abusing drugs and that his history of substance abuse mitigated his prior crimes. Defense counsel also relied on the nonviolent aspect of defendant's criminal history, arguing that a recidivist sentence is too harsh for thefts.

The court then gave defendant a chance to speak on his own behalf, and explained the two-part nature of the proceeding:

"[J]ust so you are clear, what you are addressing is the issue of your sentencing, both as a second felony offender as well as my discretionary determination as to whether or not I wish to sentence you as a persistent felony offender. That's the entire issue before me in terms of sentence. And of course, as you know, up to now, I have already made a finding that you qualify as a persistent felony offender. And the issue that we are addressing in that respect is whether or not your history, character, the nature and circumstances of your criminal conduct are such that extended incarceration and lifetime supervision of you is warranted to best serve the public's interest."

Defendant then addressed the court, expressing remorse, admitting his drug addiction problem, mentioning the death of his parents early in his life and asking for leniency.

The court reviewed some of defendant's convictions, noting they were uniformly connected with theft. It then pointed out that in defendant's presentence report, he described his violent abuse by his father, but in a much older probation report he claimed to have had a good father and a peaceful home. The court further found inconsistency between defendant's assertion of a life-long drug dependency and his stable employment history. Next, the court reviewed the effect of the theft on the victim and defendant's apparent attempt to distract police so that the other occupant of the stolen vehicle could escape. The court also noted that the police found burglary tools in the vehicle. Having explained on the record why it felt that defendant deserved the recidivism sentence, the court imposed a term of 15 years to life imprisonment.

Defendant appealed, and the Appellate Division unanimously affirmed, relying on our holding in Rosen. A Judge of this Court granted leave to appeal and we now affirm.

The United States Constitution's Sixth Amendment provides every person accused of a crime the right to "trial, by an impartial jury."¹ Defendant asserts that our persistent felony offender statute (Penal Law § 70.10)² and the procedures for applying it (CPL 400.20)³ violate the Sixth Amendment because a judge, rather than a jury, determines whether to hand down the maximum sentence of 25 years to life or something less.⁴ The question before us is whether any facts beyond those essential to the jury's verdict (other than prior convictions or admissions) were necessary for the trial judge to impose the persistent felony offender sentence (see Blakely v. Washington, 542 U.S. 296, ___, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 [2004]).

The Sole Determinant for Whether Defendant is Subject to Persistent Felony Offender Sentencing is the Prior Convictions.

In Rosen, this Court held that after the People have proved that a defendant is a twice-prior convicted felon, the sentencing court may review the history, character and criminality factors (CPL 400.20[5]) to determine whether to impose a recidivist sentence. Most pertinently, we further held that this statutory framework makes it clear that the prior felony convictions are the sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender (Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d 407, 752 N.E.2d 844). This is in keeping with Penal Law § 70.10(1)(a), which defines a persistent felony offender simply as a defendant with two prior felony convictions. The statute authorizes indeterminate sentencing once the court finds persistent felony offender status. Penal Law § 70.10(2), which says that a recidivist sentence may be imposed when the court "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 life-time supervision will best serve the public interest," describes the exercise of judicial discretion characteristic of indeterminate sentencing schemes.

Criminal Procedure Law § 400.20(1) provides that a defendant may not be sentenced as a persistent felony offender until the court has made the requisite judgment as to the defendant's character and the criminality.⁵ That statute implements, but does not change, the Penal Law § 70.10 definition of who is — and may be sentenced as — a persistent felony offender.

We could have decided Rosen differently by reading the statutes to require judicial factfinding as to the defendant's character and criminal acts before he became eligible for a persistent felony offender sentence. If we had construed the statutes to require the court to find additional facts about the defendant before imposing a recidivism sentence, the statutes would violate Apprendi. But we did not read the law that way. Under our interpretation of the relevant statutes, defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Thus, as we held in Rosen, no further findings are required. This conclusion takes defendant's sentence outside the scope of the violations described in Apprendi and its progeny.

The Supreme Court has held that a judge (as opposed to a jury) may find the fact of a defendant's prior conviction without violating the Sixth Amendment (see Almendarez-Torres v. United States, 523 U.S. 224, 226-227, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998]). Defendant does not argue to the contrary. We are bound by this holding, which the Supreme Court has repeatedly reaffirmed (see Apprendi, 530 U.S. at 487-490, 120 S.Ct. 2348; Blakely, 542 U.S. at ___, 124 S.Ct. at 2536; United States v. Booker, 543 U.S. ___, ___, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 [2005]). Although a majority of the present Justices of the Supreme Court have expressed disagreement with Almendarez-Torres (see Shepard v. United States, 544 U.S. ___, ___, 125 S.Ct. 1254, 1264, 161 L.Ed.2d 205 [2005] [Thomas, J., concurring]), we recognize that Court's obvious prerogative to overrule its own decisions and we therefore follow Almendarez-Torres until the Supreme Court rules otherwise (cf. Roper v. Simmons, 543 U.S. ___, ___, 125 S.Ct. 1183, 1209, 161 L.Ed.2d 1 [2005] [O'Connor, J., dissenting]). Here, the trial judge committed no Sixth Amendment violation by finding as fact that defendant had twice before suffered felony convictions.

After determining defendant's status as a persistent felony offender, the court went on to consider other facts in weighing whether to impose the authorized persistent felony offender sentence. In deciding against a lighter sentence, the trial court rejected defendant's contentions in favor of the People's. If, based on all it heard, the court's view of the...