PEOPLE v. NELSON (2005)

Defendant appeals from a judgment convicting him following a jury trial of one count each of rape in the third degree (Penal Law § 130.25[2] ) and endangering the welfare of a child (§ 260.10[1] ), and two counts of sodomy in the third degree (former § 130.40[2] ).   Defendant was sentenced as a persistent nonviolent felony offender to consecutive indeterminate sentences of 25 years to life on each felony count.   On appeal, defendant contends that the statutory scheme in New York pursuant to which he was adjudicated a persistent felony offender is unconstitutional.   Although defendant's contention is preserved for our review, it nevertheless is without merit (see People v. Rosen, 96 N.Y.2d 329, 334-335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160;  People v. Johnson, 5 A.D.3d 1050, 773 N.Y.S.2d 655, lv. denied 3 N.Y.3d 642, 782 N.Y.S.2d 413, 816 N.E.2d 203, 3 N.Y.3d 676, 784 N.Y.S.2d 14, 817 N.E.2d 832).   Defendant contends that the decision of the Court of Appeals in Rosen is no longer valid in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, reh. denied 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851.   We disagree.   In Blakely, 542 U.S. at ----, 124 S.Ct. at 2536-2537, the United States Supreme Court applied the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 to the facts in Blakely, noting that “[t]hese principles have been acknowledged by courts and treatises since the earliest days of graduated sentencing;  we compiled the relevant authorities in Apprendi ․, and need not repeat them here.”   The rule applied in Blakely, as set forth in Apprendi, is 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’ ” (Blakely, 542 U.S. at ----, 124 S.Ct. at 2536, quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348).   In Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d 407, 752 N.E.2d 844, the Court of Appeals wrote that it is clear from the persistent felony offender statutory framework that the prior felony convictions are the sole determinant “of whether a defendant is subject to enhanced sentencing as a persistent felony offender ․ [, and d]efendant had no constitutional right to a jury trial to establish the facts of his prior felony convictions (see, Apprendi [530 U.S. at 488, 120 S.Ct. at 2361-2362] ).”   Contrary to defendant's contention, Blakely does not render invalid the analysis of the Court of Appeals in Rosen.

Contrary to the further contention of defendant, the evidence produced at the persistent felony offender hearing is sufficient to support the finding that his continued incarceration is “warranted to best serve the public interest” (CPL 400.20[1] ).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: