People v. Rosen

• Decision Date: 03 April 2001
• Docket Number: No. 28,28
• Citation: 752 N.E.2d 844,728 N.Y.S.2d 407
• Parties: (Ct.App. 2001) The People of the State of New York, Respondent, v. Harry Rosen, Appellant. 1
• Court: New York Court of Appeals Court of Appeals

Page 407

728 N.Y.S.2d 407 (Ct.App. 2001)

The People of the State of New York, Respondent, v. Harry Rosen, Appellant.

1 No. 28

Court of Appeals of New York.

Decided April 3, 2001

Andrew C. Fine, New York City, Edward s. Graves and M. Sue Wycoff for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Ilisa T. Fleischer, and Morrie I. Kleinbart of counsel), for respondent.

Eliot Spitzer, Attorney General, Albany (Edward Lindner, Preeta D. Bansal, Daniel Smirlock and Robin A. Forshaw of counsel), in his statutory capacity under Executive Law 71.

OPINION OF THE COURT

SMITH, J.:

While riding on the subway one morning, two passengers observed defendant put his hand beneath the skirt of a four-year-old girl and fondle her. After the passengers notified the child's mother, defendant attempted to escape but was caught and arrested. Defendant pleaded guilty to first degree sexual abuse, the maximum sentence for which is seven years. The plea court informed him that it would impose a sentence of three to six years. The court ordered a psychiatric evaluation to accompany defendant's pre-sentence report.

Based on evidence contained in the psychological evaluation and the pre-sentence report, the prosecutor sought a hearing to have defendant sentenced as a persistent felony offender, which would authorize an increase in defendant's sentence beyond the maximum seven years. The court gave defendant an opportunity to recant his plea and explained that if defendant chose to retain the plea and were adjudicated a persistent felon, the court would consider the prosecutor's application and enhance the sentence. Defense counsel insisted on specific performance of the plea agreement, after which the court, sua sponte, vacated the plea and sent the matter to trial.

At a pre-trial hearing, the Trial Court instructed the prosecutor that the arresting officer was precluded from testifying about defendant's prior sex-related convictions, prior sex crime record or any statements made by defendant that related to his RAP sheet. At trial, however, the officer made specific reference to the precluded testimony. Defense counsel objected and moved for a mistrial, arguing that the officer's testimony was unduly prejudicial. The Court denied defendant's motion and gave a curative instruction to the jury, striking out the prejudicial statement.

Defendant was ultimately convicted of first-degree sexual abuse and endangering the welfare of a child. The court held a hearing pursuant to CPL 400.20 to determine whether to adjudicate defendant a persistent felony offender. As set forth in CPL 400.20(5), the court first concluded that defendant was a persistent felony offender based on two prior felony convictions - a 1983 sodomy conviction for abusing his 18-month-old son and a 1990 conviction for fourth degree criminal possession of stolen property. After oral arguments by counsel, the court adjudicated defendant a persistent felony offender and sentenced him to 25 years to life on the first-degree sexual abuse count and one year on the endangering the welfare of a child count. The Appellate Division unanimously affirmed, concluding, among other things, that the trial court was warranted in vacating defendant's plea and sending the case to trial because defendant refused to choose between accepting an enhanced sentence and withdrawing his plea. A Judge of this Court granted the defendant leave to appeal.

Defendant claims, for the first time on this appeal, that the discretionary persistent felony offender sentence enhancement provisions, set forth in Penal Law § 70.10 and CPL 400.20(5), violated his right to trial by jury under Apprendi v New Jersey (530 U.S. 466) and, thus, constituted an error affecting "the organization of the court or the mode of proceedings proscribed by law" reviewable on appeal even absent a timely objection before the sentencing court (People v Patterson 39 N.Y.2d 288, 294-296; see, People v Hernandez, 94 N.Y.2d 552; People v Monroe, 90 N.Y.2d 982). Defendant further maintains that application of the discretionary persistent felony offender statutes also violated his State right to a charge-specific indictment, rendering the indictment jurisdictionally defective and thus reviewable notwithstanding a failure to preserve any alleged error. We disagree with both contentions.

The Due Process Clause of the United States Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged" (In re Winship, 397 U.S. 358, 364). The issue in Apprendi, as framed by the United States Supreme Court, was "whether the due process clause of the fourteenth amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt" (Apprendi, 530 U.S. at ---, 120 S Ct, at 2351). The Court held:

"Other 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in [Jones v United Sates, 526...