People v. Rivera , 5 N.Y.3d 61 ( 2005 )

OPINION OF THE COURT

Rosenblatt, J.

Defendant asks us to overrule People v Rosen (96 NY2d 329 [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 US 466 [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 á 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 40Q.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 US 296, 303-304 [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 NY2d at 335). 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 US 224, 226-227 [1998]). Defendant does not argue to the contrary. We are bound by this holding, which the Supreme Court has repeatedly reaffirmed (see Apprendi, 530 US at 487-490; Blakely, 542 US at 301; United States v Booker, 543 US 220, 244 [2005])- Although a majority of the present Justices of the Supreme Court have expressed disagreement with Almendarez-Torres (see Shepard v United States, 544 US 13, —, 125 S Ct 1254, 1264 [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 US 551, 594 [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 facts surrounding defendant’s history and character were different, the court might well have exercised its discretion to impose a less severe sentence.

Nevertheless, the relevant question under the United States Constitution is not whether those facts were essential to the trial court’s opinion (CPL 400.20 [1] [b]), but whether there are any facts other than the predicate convictions that must be found to make recidivist sentencing possible (see Blakely, 542 US at 303-304). Our answer is no. As we explained in Rosen, the predicate felonies are both necessary and sufficient conditions for imposition of the authorized sentence for recidivism; that is why we pointedly called the predicate felonies the “sole” determinant (96 NY2d at 335).⁶ By this unequivocal statement, we meant, and today confirm, that Criminal Procedure Law § 400.20, by authorizing a hearing on facts relating to the defendant’s history and character, does not grant defendants a legal entitlement to have those facts receive controlling weight in influencing the court’s opinion. The statutory language requiring the sentencing court to consider the specified factors and to articulate the reason for the chosen sentence grants defendants a right to an airing and an explanation, not a result.

In this respect, our statutes are quite similar to the federal sentencing statute, which requires federal sentencing courts to consider various factors, including “the history and characteristics of the defendant” (18 USC § 3553 [a] [1]). The Supreme Court recently upheld the statutory demand for sentencing courts to consider those factors, which do not require any jury factfinding (see Booker, 543 US at 245-246 [op of Breyer, J.]).

To reiterate our analysis in Rosen, a defendant adjudicated as a persistent felony offender has a statutory right to present evidence that might influence the court to exercise its discretion to hand down a sentence as if no recidivism finding existed, while the People retain the burden to show that the defendant deserves the higher sentence. Nevertheless, once a defendant is adjudged a persistent felony offender, a recidivism sentence cannot be held erroneous as a matter of law, unless the sentencing court acts arbitrarily or irrationally.

The court’s opinion is, of course, subject to appellate review, as is any exercise of discretion. The Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident. In this way, the Appellate Division can and should mitigate inappropriately severe applications of the statute. A determination of that kind, however, is based not on the law but as an exercise of the Appellate Division’s discretion in the interest of justice as reserved uniquely to that Court (CPL 470.20 [6]).⁷

In practical terms, the legislative command that sentencing courts consider the defendant’s “history and character” and the “nature and circumstances” of the defendant’s criminal conduct merely makes explicit what sentencing courts have always done in deciding where, within a range, to impose a sentence. The mandatory consideration and articulation of these factors is important in New York because, under Criminal Procedure Law § 470.20 (6), the Appellate Division itself exercises discretion in reviewing sentences and ameliorating harshness, even when those sentences are justified as a matter of law. The components of our statutes that require a sentencing court, in reaching its opinion under Criminal Procedure Law § 400.20 (1) (b), to consider the specified factors and explain why that consideration led the court to impose a recidivist sentence allows more complete review by the Appellate Division in the interest of justice. The practice, however, falls squarely within the most traditional discretionary sentencing role of the judge.⁸

A number of federal trial courts have awarded (or have recommended awarding) writs of habeas corpus to state prisoners under a different view of our statutes.⁹ These courts believed that our statutes would not permit the imposition of a recidivist sentence until the trial justice found facts about the defendant’s history and character beyond the prior convictions. These courts might be correct, if their interpretation of our statutes were correct.¹⁰ As we explained in Rosen, however, no additional fact-finding beyond the fact of two prior felony convictions is required under Penal Law § 70.10 or under Criminal Procedure Law § 400.20. If, for example, a defendant had an especially long and disturbing history of criminal convictions, a persistent felony offender sentence might well be within the trial justice’s discretion even with no further factual findings. Once the defendant is adjudicated a persistent felony offender, the requirement that the sentencing justice reach an opinion as to the defendant’s history and character is merely another way of saying that the court should exercise its discretion.

Accordingly, the order of the Appellate Division should be affirmed.

1 . The federal right to a jury trial is binding on New York through the Fourteenth Amendment of the United States Constitution (see Duncan v Louisiana, 391 US 145, 149 [1968]).

2 . This statute defines a “persistent felony offender” as one who “stands convicted of a felony after having previously been convicted of two or more felonies” and specifies that the prior felonies must have resulted in a sentence of “imprisonment in excess of one year, or a sentence to death” (Penal Law § 70.10 [1]). The statute further authorizes a court to sentence such an offender as if the crime were a class A-I felony (thereby permitting an indeterminate sentence with a maximum term of life imprisonment), “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” (§ 70.10 [2]).

3 . This statute declares that the recidivist sentence may be imposed when “the court (a) has found that the defendant is a persistent felony offender as defined in . . . the penal law, and (b) is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest” (CPL 400.20 [1]). The law goes on to require a hearing or hearings, at which the People must prove to the court, beyond a reasonable doubt, the fact of defendant’s prior convictions, and either party may offer evidence (subject to a preponderance-of-the-evidence standard) bearing on the court’s exercise of discretion as to whether a recidivist sentence is warranted (CPL 400.20 [5]-[9]).

4 . Defendant also asserts that the facts that, in his view, must be found by the jury must also be alleged in the indictment (see Jones v United States, 526 US 227, 243 n 6 [1999]; Apprendi v New Jersey, 530 US 466, 476 [2000]). This argument turns on the same question as the jury-trial argument, and we reject it for the same reasons.

5 . Even before the relevant statutes were adopted, the Commission on the Revision of the Penal Law and Criminal Code asserted that only the predicate felonies would be essential to a persistent felony offender sentence, and that the history and character determination merely guided the sentencing court’s discretion (see Commn Staff Notes, reprinted following CLS, Book 7E, CPL 400.20, at 122 [1996] [“The Penal Law does not require proof of any background factor as a prerequisite for use of the special sentence. Under the Penal Law, if the defendant is shown to be a persistent felony offender, use of the special sentence is within the discretion of the court. Thus the procedure set forth in the CPL with respect to background factors other than prior convictions, gives the defendant rights to which he would otherwise .not be entitled.”]).

6 . The Appellate Division understood our Rosen holding correctly in People v Nelson (16 AD3d 1172 [4th Dept 2005]), where it held that the prior felony convictions alone were enough to justify defendant’s sentence as a persistent felony offender.

7 . See e.g. People v Williams, 239 AD2d 269, 269-270 (1st Dept 1997) (reducing a persistent felony offender sentence in the interest of justice, based on defendant’s rehabilitation); People v Evans, 212 AD2d 626, 627 (2d Dept 1995) (setting persistent felony offender sentences for multiple counts to run concurrently rather than consecutively, because the sentence would otherwise be “harsh and excessive”). Some intermediate appellate decisions have reversed persistent felony offender sentences where the statutory procedures were not followed (see e.g. People v Wilson, 64 AD2d 782, 783 [3d Dept 1978]), but such decisions should not be read as requiring judicial factfinding as a necessary component to a persistent felony offender sentence. Rather, they insist that the sentencing court exercise its discretion according to legislatively-prescribed procedural rules that facilitate the exercise of the Appellate Division’s discretion in the interests of justice. We note that there appears to be no analogue in the federal judiciary to our Appellate Division’s authority to vacate or modify a sentence based on the interest of justice as opposed to on the law.

8 . In New York, the exercise of this type of discretion has never fallen to juries, except in the unusual context of capital cases. In Apprendi, the challenged judicial finding concerned the defendant’s motive for the crime, which was racial animus (see Apprendi, 530 US at 469-470). In Ring, the defendant was sentenced based on the judge’s finding that (1) Ring was the actual killer, (2) Ring committed the crime in exchange for something of pecuniary value, and (3) Ring acted in an especially heinous, cruel way (see Ring, 536 US at 594-595). In Blakely, the judge found as fact that Blakely had committed the crime with deliberate cruelty (see Blakely, 542 US at 303). In Booker, the sentencing judge determined the quantity of drugs sold by Booker and that Booker had obstructed justice (see Booker, 543 US at 227). All of these prohibited judicial findings relate to the crime for which the defendant was on trial and, as quintessential fact questions, would properly have been subject to proof before the jury, in stark contrast to traditional sentencing analysis of factors like the defendant’s difficult childhood, remorse or self-perceived economic dependence on a life of crime (cf. State v Rivera, 106 Haw 146, 160, 102 P3d 1044, 1058 [2004] [distinguishing between “intrinsic” aspects of the crime itself, which must be proved to the jury, and “extrinsic” characteristics of the defendant, which are subject to judicial determination]).

Although we do not rest our decision on it, we note that the prohibited findings in these Supreme Court cases are thus readily distinguishable from the subjective determination by the sentencing court operating under our recidivism statutes in this case. Our statutes contemplate that the sentencing court—after it has adjudicated the defendant a persistent felony offender— will consider holistically the defendant’s entire circumstances and character, including traits touching upon the need for deterrence, retribution and rehabilitation unrelated to the crime of conviction. This is different from the type of factfinding involved in Apprendi. In this respect, we note that in Brown v Greiner (409 F3d 523, 534 [2d Cir 2005]), the United States Court of Appeals for the Second Circuit described the contested second phase of our sentencing procedure as “a vague, amorphous assessment” of whether the public interest would be served through imposition of the recidivist sentence.

9 . See Hernandez v Conway, 2005 US Dist LEXIS 6826 (SD NY, Apr. 13, 2005, No. 03 Civ 0535) (decision pending before the District Court); Kaua v Frank, 350 F Supp 2d 848 (D Haw 2004); Besser v Walsh, 2003 WL 22801952, 2003 US Dist LEXIS 21474 (SD NY, Nqv. 26, 2003, No. 02 Civ 6775) (decision pending before the District Court); Brown v Greiner, 258 F Supp 2d 68 (ED NY 2003), revd 409 F3d 523 (2005); see also Christopher H. Lindstrom, Note, In the Shadow of Apprendi: People v. Rosen Reveals the Impractical Nature and Uncertain Future of Apprendi v. New Jersey, 36 Colum JL & Soc Probs 103 (2002).

10 . The United States Court of Appeals for the Second Circuit’s rejection of the habeas petitions in Brown (409 F3d 523 [2005]) confirms that Rosen was correctly decided based on Apprendi, but does not directly address the issue we consider today: whether Rosen remains good law in light of Apprendi’s progeny. As we have discussed, we hold that none of the United States Supreme Court’s cases after Apprendi cast doubt on the continuing vitality of Rosen.