New York Penal Law 70.10
Penal Law 70.10 reads, in relevant part:
"1. Definition of a persistent felony offender.
"(a) a persistent felony offender is a person, other than a persistent violent felony offender as defined in section 70.08, who stands convicted of a felony after having previously been convicted of two or more felonies, as provided in paragraphs (b) and (c) of this subdivision . . .
"2. Authorized Sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent felony offender, and when 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 life-time supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04, 70.06 or subdivision five of section 70.80 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony. In such event the reasons for the court's opinion shall be set forth in the record."
In People v. Rosen (96 NY2d 329, 335, 752 NE2d 844, 728 NYS2d 407 ), the Court analyzed our discretionary persistent felony offender (PFO) sentence enhancement provisions under Penal Law 70.10. Rosen found Penal Law 70.10 was in compliance with Apprendi.
Under Rosen, a judge's finding that a defendant has previously been convicted of two or more felonies does not implicate a defendant's constitutional right to a jury trial.
With regard to the additional language within Penal Law 70.10, language not present in the PVFO statute of Penal Law 70.08, that the sentencing judge is to consider defendant's history, character, and the nature and circumstances of the criminal conduct, Rosen reasoned this was only a reiteration of the court's traditional role exercised in all sentencing decisions, and did not constitute fact-finding by the sentencing judge.
In People v. Rivera (5 NY3d 61, 833 NE2d 194, 800 NYS2d 51 ), the Court of Appeals again analyzed the constitutionality of the PFO statute (Penal Law 70.10).
Rivera looked to 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 a PFO sentence. (Id. at 66.)
Rivera concluded that Penal Law 70.10 was constitutional because defendants are deemed PFOs solely on the basis of a finding of two prior felony convictions.
Only after such a finding is made, does the sentencing court proceed to make judicial factual determinations based upon a defendant's history, character, or the circumstances surrounding the criminal conduct.
Rivera found no basis to depart from its conclusion in Rosen based upon the Supreme Court's decision in Blakely v. Washington (542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 , supra).