# People v. Rivera > New York Court of Appeals · June 9, 2005 · 5 N.Y.3d 61 URL: https://www.frixlaw.com/law-library/cases/9520636 ## Case - **Full name:** The People of the State of New York, Respondent, v. William Rivera, Appellant - **Court:** New York Court of Appeals - **Decided:** June 9, 2005 - **Citations:** 5 N.Y.3d 61; 800 N.Y.S.2d 51; 833 N.E.2d 194; 2005 N.Y. LEXIS 1214 - **Precedential status:** Published - **Opinion:** Dissent by Kaye - **Judges:** Rosenblatt, Kaye, Ciparick - **Cited by:** 162 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9520636 ## How later opinions describe it (automated extraction) - holding that New York recidivist sentencing scheme does not violate Apprendi because the requisite prior convictions are the only determinant of whether the defendant is subject to recidivist sentence, the court then has discretion in deciding whether to impose recidivist sent… - noting that the prior conviction exception has been repeatedly reaffirmed by the Supreme Court, and ‘‘[a]lthough a majority of the present Justices of the Supreme Court have expressed disagreement with Almenddrez-Torres, we recognize that Court's obvious prerogative to overrul… - noting that the prior conviction exception has been repeatedly reaffirmed by the Supreme Court, and "[a]lthough a majority of the present Justices of the Supreme Court have expressed disagreement with Almendárez-Torres, we recognize that Court's obvious prerogative to overrule… - noting that the prior conviction exception has been repeatedly reaffirmed by the Supreme Court, and that even though recent decisions have cast doubt on the continuing validity of this exception, it is solely the Supreme Court's prerogative to overrule its own decisions, and t… - holding that no Sixth Amendment violation was committed when court found fact of defendant’s two prior convictions, conferring statutory persistent-offender status on defendant ## Opinion text Chief Judge Kaye (dissenting). I begin by stating two points of agreement with the majority. First, I agree that People v Rosen ( 96 NY2d 329 [2001]) was correct at the time it was decided. The defendant in Rosen brought his challenge on the basis of Apprendi v New Jersey ( 530 US 466, 490 [2000]), in which the Supreme Court held that “[o]ther 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.” Since it was the fact of two prior convictions “that initially subjected defendant to enhanced sentencing” (R osen, 96 NY2d at 334 ), we held that there was no violation of Apprendi , concluding that Apprendi required a jury to decide only those facts (other than recidivism) that determine a defendant’s threshold eligibility for an increased sentence. Apprendi made clear that sentencing courts may continue to exercise their discretion in imposing sentence within the range of sentences prescribed by the statute defining an offense {see 530 US at 481 ). We reasoned that since a defendant becomes eligible for persistent felony offender treatment based on prior felony convictions, a judge may, consistent with Apprendi , find the facts that must then be established before an increased sentence may be imposed. Since Apprendi , however, the Supreme Court has periodically revisited its holding (see e.g. Ring v Arizona, 536 US 584 [2002]; Blakely v Washington, 542 US 296 [2004]). Most significantly, in Ring the Court overruled its decision in Walton v Arizona ( 497 US 639 [1990]), which at the time of Apprendi—and Rosen— was still good law. 1 The Arizona capital sentencing scheme upheld in Walton had allowed a judge, sitting without a jury, to find an aggravating circumstance that was statutorily necessary *72 for imposition of the death penalty. This scheme was thought not to violate the constitutional right to a jury trial because a defendant sentenced by a judge to death had been rendered initially eligible for that penalty upon conviction by a jury of first-degree murder. Since the Arizona statute specified that the only available sentencing options for a defendant convicted of first-degree murder were either death or life imprisonment, a defendant sentenced by a judge to death had thus been sentenced “within the range” of punishment authorized for the crime by the jury verdict, as Apprendi permits (see Apprendi, 530 US at 481 [sentencing judges may “exercise discretion— taking into consideration various factors relating both to offense and offender—in imposing a [sentence] within the range prescribed by statute”]). That being so, there was no violation of the Apprendi rule that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. In Ring , however, the Supreme Court, in overruling Walton , rejected this reasoning, for the first time making clear that all facts (other than recidivism) that must be found in order to increase a sentence beyond the maximum—regardless of whether they relate to the defendant’s threshold eligibility for the increased sentence—must be found by a jury beyond a reasonable doubt. 2 Thus, inasmuch as Walton was not overruled until Ring , the decision in Rosen neither was contrary to, nor involved an unreasonable application of, Apprendi at the time it was decided (see Brown v Greiner, 409 F3d 523 [2d Cir 2005]). Second, I agree that the statutory scheme the Court describes would pass constitutional muster. The problem, though, is that the statute as construed by the majority was not before today the law in New York. 3 The language of the statute is plain, and reflects the intent of the Legislature, that not every two-time *73 (nonviolent) recidivist is eligible, without more, to be sentenced to an indeterminate life term. Only some are. True, a persistent felony offender is defined “simply as a defendant with two prior felony convictions” (majority op at 66; see Penal Law § 70.10 [1]). But under the statute a defendant’s classification as a persistent felon does not in and of itself subject the offender to enhanced punishment. Fitting the definition of a persistent felony offender under Penal Law § 70.10 (1) is necessary but not sufficient to render a defendant eligible for enhanced sentencing under CPL 400.20. Rather, an enhanced sentence is available only for those who additionally are found to be of such history and character, and to have committed their criminal conduct under such circumstances, that extended incarceration and lifetime supervision will best serve the public interest (see Penal Law § 70.10 [2]). The persistent felony offender statute thus stands in stark contrast to Penal Law § 70.08, which requires that all three-time violent felons be sentenced to an indeterminate life term on the basis of the prior convictions alone. I cannot agree that the second prerequisite is merely optional. The statutory command is clear: Enhanced punishment “may not be imposed” unless the court makes two findings—that is, unless the court (1) has found the necessary prior convictions, and (2) is of the opinion that the history and character of the defendant and the nature and circumstances of his or her criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest (CPL 400.20 [1]). Each finding must be “based upon evidence in the record of a hearing held pursuant to” CPL 400.20 (id.). The reasons for the court’s conclusion must be set forth in the record (see Penal Law § 70.10 [2]). That the statute calls this finding of fact an “opinion” is of no moment. Blakely makes clear that any factfinding essential to sentence enhancement must be decided by a jury, even if it is general and unspecified in nature, 4 and even if the ultimate sentencing determination is discretionary. “Whether the judge’s authority to impose an enhanced sentence depends on finding a *74 specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact” ( 542 US at 305 ). “Nor does it matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. He cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence” ( 542 US at 305 n 8). Under CPL 400.20, the court’s conclusion must be based on factfindings made after a hearing at which the People have the burden of proof by a preponderance of the evidence 5 —a statutory requirement the majority minimizes. Further, after determining that the defendant qualifies as a persistent felony offender on the basis of prior convictions, the court “must then make such findings of fact as it deems relevant to the question of whether a persistent felony offender sentence is warranted” (CPL 400.20 [9] [emphasis added]). 6 The majority nevertheless construes the statute as requiring “no additional factfinding beyond the fact of two prior felony convictions” (majority op at 70). I cannot agree with the Court that the Legislature’s “must” means “need not.” Indeed, the Appellate Division has repeatedly vacated persistent felony offender sentences for failure to follow the procedures or make the findings mandated by CPL 400.20 (see e.g. People v Wilson, 64 AD2d 782, 782-783 [3d Dept 1978]; People v Perry, 161 AD2d 1156, 1157 [4th Dept 1990]; People v Smith, 232 AD2d 586, 586-587 [2d Dept 1996]; People v Garcia, 267 AD2d 247, 247-248 [2d Dept 1999]). The Court erroneously *75 implies that these reversals must have been made in the interest of justice (see majority op at 68-69, 69 n 7), but the Appellate Division thought otherwise (see Wilson, 64 AD2d at 783 [modifying “on the law and the facts”]; Perry, 161 AD2d at 1156 [“on the law”]; Smith, 232 AD2d at 586 [“on the law”]; Garcia, 267 AD2d at 247 [“on the law”]; see also Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 400.20, at 274 [1994] [“enhanced sentence must be based not only upon the requisite predicate offenses; but also upon facts regarding the overall history and character of the defendant”; “findings of fact with regard thereto” are required]; Association of Justices of the Supreme Court of the State of New York, Bench Book for Trial Judges—New York § 60 [D] [1] [d] [1] [“court must make findings of fact relevant to whether persistent felony sentence is warranted”]). The Court declares that the prohibited judicial findings in Apprendi, Ring, Blakely and United States v Booker ( 543 US 220 [2005])—which “relate[d] to the crime for which the defendant was on trial” (majority op at 69 n 8)—are “readily distinguishable from the subjective determination by the sentencing court operating under our recidivism statutes in this case” {id. at 70 n 8). In doing so, however, the Court focuses exclusively on the “history and character” prong of the sentencing court’s “opinion,” while downplaying the statutory requirement that a judge also make findings as to the “nature and circumstances of [the defendant’s] criminal conduct.” Here, in support of his determination that enhanced punishment was warranted, the sentencing Judge made a number of findings that related to the crime for which defendant was on trial. Specifically, although defendant was not charged with the theft of the vehicle that he used without authorization, the Judge found that its owner had been deprived for four days of his work van and tools—and therefore of his ability to earn a livelihood during those days—thus making findings about the extent of the harm to the victim. The Judge further found that defendant ran a red light while driving the van; that, after being stopped by the police, he aided in the escape of his passenger and resisted his own arrest; and that he possessed burglar’s tools. None of these facts—all of them relating to the *76 crime charged—was found by the jury. 7 On the basis of these and other findings, defendant—who would otherwise have been subject to a maximum sentence of 2 to 4 years’ imprisonment for the class E nonviolent felony of which he was convicted— received a sentence of 15 years to life. In recasting the statute as one in which a defendant bears the burden of demonstrating that an enhanced sentence is not warranted, the Court ignores both the language and the intent of the law. By requiring that a court hold a hearing and make findings before it could impose a persistent felony sentence, the Legislature sought to limit the availability of enhanced punishment to a subclass of persistent offenders. Today, however, the majority announces that every three-time nonviolent felon is automatically eligible, without more, for a potential life sentence. That decision is for the Legislature, not the Court. . Indeed, in Rosen , the Attorney General argued to us that the New York persistent felony offender statute was functionally identical to the Arizona capital sentencing scheme, at that time held constitutional in Walton . . An additional point deserves mention. Rosen was correct when it was decided, and based on the Court’s decision here, remains good law today. But even if it were not, state trial courts are bound to follow existing precedent of a higher court, even though they may disagree (cf. People v West, 2 Misc 3d 332, 336 [Sup Ct, NY County 2003], revd 12 AD3d 152 [1st Dept 2004]; People v Cephas, 2003 NY Slip Op 51068[U] , *9 [Sup Ct, NY County, May 23, 2003]). . The statutes at issue here involve only “persistent felony offenders”— defendants with respect to whom at least one of the relevant prior or current felonies is nonviolent. Sentencing ranges for “persistent violent felony offenders”—defendants with two prior and one current violent felony offense—are separately provided for in Penal Law § 70.08, which is not challenged here and *73 is, in any event, clearly constitutional under Almendarez-Torres v United States ( 523 US 224 [1998]).- . Thus, the statute held unconstitutional in Blakely authorized the sentencing court to impose an enhanced sentence if it found “substantial and compelling reasons justifying an exceptional sentence” ( 542 US at 299 ). . “Upon any hearing held pursuant to this section the burden of proof is upon the people. . . . Matters pertaining to the defendant’s history and character and the nature and circumstances of his criminal conduct may be established by any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence, and the standard of proof with respect to such matters shall be a preponderance of the evidence” (CPL 400.20 [5]; see also Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 400.20, at 274 [1994] [“the district attorney is required to present evidence to support the allegations of bad character”]). . Indeed, if the hearing is terminated without a finding, “the defendant may not be sentenced as a persistent felony offender” unless the court “recommences the proceedings and makes the necessary findings” (CPL 400.20 [10] [emphasis added]). . Although defendant was originally charged with the traffic infraction and the possession of burglar’s tools, these counts were not considered by the jury. However, the sentencing court stated, “And I would note, of course, the evidence did show, although it didn’t go to the jury, the jury didn’t have to make a finding of it, that you had some damn good burglar’s tools in the van.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9520636. Public record. Not legal advice.