In People v. Rosen (96 N.Y.2d 329, 752 N.E.2d 844, 728 N.Y.S.2d 407 , the 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 ) 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 N.Y.2d 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. 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.
The New York Court of Appeals was presented the question, post-Apprendi, whether the discretionary persistent felony offender provisions comported with the reasoning of the United States Supreme Court.
The Court of Appeals found the procedures to pass constitutional muster because the Court found that the sole determining factor in whether enhanced sentencing was proper was the fact of prior convictions. In the view of the Court of Appeals, in making the secondary determination of factual findings, the court was only performing the traditional role of a sentencing court in fixing the precise sentence within the statutory range.
The Court stated that New York's discretionary persistent felony offender statute (Penal Law § 70.10) did not contravene a defendant's Sixth and Fourteenth Amendment rights to a trial by jury under Apprendi.
The Court observed that the prior felony convictions which had enhanced the defendant's sentence in Rosen constituted "an explicitly noted exception to the general rule in Apprendi," and that there was no constitutional error in a judicial finding of the fact of a prior conviction. (Id. at 334.)