Should a Person Previously Convicted of Violent Crimes Be Given An Enhanced Sentence ?
Penal Law 70.08 (1) (a) defines a persistent violent felony offender as "a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02 . . . after having previously been subjected to two or more predicate violent felony convictions as defined in paragraph (b) of subdivision one of 70.04 of this article."
Subdivision (2) of Penal Law 70.08 indicates that once a court has found a defendant to be a PVFO, the court must impose an enhanced sentence as set forth in subdivision (3).
In Almendarez-Torres v. United States (523 US 224, 118 S Ct 1219, 140 L Ed 2d 350 ), the Supreme Court held that the existence of a prior felony conviction used to enhance a defendant's sentencing range, need not be charged in an indictment nor proved beyond a reasonable doubt before a jury.
Because the predicate conviction is solely a sentencing factor, rather than an element of the crime, a court is authorized to increase a sentence for a recidivist without implicating a defendant's right to a trial by jury.
In Apprendi v. New Jersey (530 US at 490, 120 S Ct 2348, 147 L Ed 2d 435), the Supreme Court retained the Almendarez-Torres exception, expressly stating that "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."
The Supreme Court's decisions subsequent to Apprendi have consistently continued to apply the Almendarez-Torres exception. (See e.g. James v. United States, 550 US 192, 214 n 8, 127 S Ct 1586, 167 L Ed 2d 532  ["To the extent that James contends that the simple fact of his prior conviction was required to be found by a jury, his position is baseless. James admitted the fact of his prior conviction in his guilty plea, and in any case, we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes"];
See also Cunningham v. California, 549 US 270, 127 S Ct 856, 166 L Ed 2d 856 ; United States v. Booker, 543 US 220, 125 S Ct 738, 160 L Ed 2d 621 ; Blakey v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 ; Ring v. Arizona, 536 US 584, 122 S Ct 2428, 153 L Ed 2d 556 .)