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March 27, 2003


The opinion of the court was delivered by: John Gleeson, District Judge.

New York has two sentence-enhancing statutes for persistent felony offenders. One is the persistent violent felony offender provision in N.Y. Penal Law § 70.08, which practitioners of criminal law in New York often refer to as the "mandatory" one. That statute applies to defendants who stand convicted of a violent felony (as defined in N.Y. Penal Law § 70.02) and have previously been convicted of two or more predicate violent felonies (as defined in N.Y. Penal Law § 70.04(1)(b)). Such defendants receive an indeterminate sentence of imprisonment, the maximum of which must be life. Minimum terms are prescribed by the statute as well and vary depending on the grade of the offense of conviction. See N.Y. Penal Law § 70.08(3). For example, defendants convicted of a class D felony (like the petitioner in this case) must receive a minimum period of imprisonment of at least 12 years, but it may not exceed 25 years. Id. Under § 70.08, "the court must impose" an enhanced penalty once it finds that the predicate convictions occurred, id. at § 70.08(2)(emphasis added), hence the use of the shorthand "mandatory" to describe that form of sentence enhancement.

The second persistent felony offender statute is N.Y. Penal Law § 70.10. This statute is designed to provide enhanced punishment for recidivists who fail to qualify as mandatory persistent violent felony offenders under § 70.08. It characterizes as a "persistent felony offender" any defendant who stands convicted of a felony and has two prior felony convictions (whether or not they are for violent felonies) as defined in the statute. See N.Y. Penal Law § 70.10(1)(a)-(c). As an enhanced penalty for such offenders, § 70.10 provides that, in lieu of the sentence otherwise authorized by the penal law, persistent felony offenders "may" be sentenced as though the offense of conviction were a class A-1 felony. Id. (emphasis added). For defendants like the petitioner here, the enhancement is severe. As a defendant convicted of a class D felony, he faced a maximum of seven years in prison;*fn1 as a persistent felony offender, he faced a minimum of 15 years (even longer than the mandatory enhancement) and a maximum sentence of life in prison.

The central issue in this case is a constitutional attack on the discretionary persistent felony offender statute. Petitioner Nelson Brown contends that the sentence imposed upon him under that statute violated the rule announced by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). I agree. New York's discretionary persistent felony offender statute subjected Brown to a term of imprisonment that more than doubled the statutory maximum sentence he faced based on the jury's verdict. The enhanced sentence was based on a judge's factual findings about Brown's personal history and character. Put another way, it was based on facts that were not charged in the indictment, submitted to a jury, or proved be yond a reasonable doubt. This violated the rule in Apprendi. Id. at 490, 120 S.Ct. 2348. Since Brown raised his claim on direct review in state court, which denied it on the merits, there is no procedural impediment to his reliance on it here. Brown is thus entitled to habeas relief. I hereby grant the petition and issue the writ.


A. Brown's Conviction

On the evening of January 15, 1996, a group of men gathered outside Brown's apartment. One person in that group had apparently shot Brown's brother earlier that day, and Brown feared for his own safety, so he and three of his friends inside his apartment, Andrew Tucker, Rodney Green and McKinley Miller, armed themselves and ran up to the roof. Shortly thereafter, a gunfight erupted between Brown (and his friends on the roof) and the men on the street below. During the gunfight, a stray bullet fired from the street went through the window of a downstairs apartment and struck a young boy, who suffered some brain damage and vision loss in one eye. No one else was injured.

After learning that the boy had been shot, Brown took the guns he and his friends had used and threw them in the garbage. Later that night, he went to the police with the boy's mother and turned himself in. The police arrested Brown and searched his apartment, where they seized from a locked hallway closet a firearm, ammunition, drugs, and a large amount of cash. Before trial, however, this evidence was suppressed because neither Brown nor his mother had voluntarily consented to the search. See Trial Tr. 311-16.*fn2

Brown and each of his friends were charged with thirteen separate crimes: attempted murder in the second degree, two counts of assault in the first degree, one count of attempted assault in the first degree, one count of reckless endangerment in the first degree, and four counts each of criminal possession of a weapon in the second degree and four counts of criminal possession of a weapon and in the third degree. Tucker waived a jury trial and was convicted of criminal possession of a weapon in the second degree. The other three defendants went to trial together, but their cases were tried to two different juries because Green argued that he was never on the roof, whereas Miller and Brown argued the defense of justification. Green's jury found him guilty of assault, reckless endangerment, and criminal possession of a weapon in the second and third degrees. The other jury acquitted Brown and Miller on all charges except one count of criminal possession of a weapon in the third degree, based on the gun possessed by Tucker.

Tucker was sentenced as a youthful offender to probation. Green was sentenced as a second felony offender to concurrent terms of imprisonment, the longest of which were ten years in prison for assault and criminal possession of a weapon in the second degree. Miller was sentenced, based on two juvenile offenses and three prior violent felony convictions, as a persistent violent felony offender (i.e., pursuant to N.Y. Penal Law § 70.08) to a term of imprisonment of 16 years to life.

B. Brown's Sentencing

Brown's sentencing spanned several years. He was first sentenced in 1997 as a discretionary persistent felony offender (i.e., pursuant to N.Y. Penal Law § 70.10) to fifteen years to life imprisonment. The Appellate Division overturned that sentence because the sentencing judge had failed to make the factual findings required by New York law. The sentencing court resentenced Brown in 2000, again as a discretionary persistent felony offender and to the same sentence, after making the required findings. The resentencing was affirmed by the Appellate Division. Because the details of his sentencing are central to Brown's Apprendi claim, they are set forth below.

1. The First Sertetcing

Prior to Brown's sentencing, the court, on its own motion pursuant to N.Y. CPL § 400.20(3), initiated a hearing to determine whether Brown should be sentenced as a persistent felony offender. See Hr'g Not. The court's action was based on Brown's prior convictions and assorted facts and circumstances surrounding his present and prior convictions. As for prior felony convictions, the court first noted that: (1) in 1983, a jury in Kings County convicted Brown of robbery in the second degree, assault in the second degree, and assault in the third degree, for which he was sentenced to concurrent two and onethird to seven-year terms of imprisonment, of which he served more than five years before being paroled in September 1988; and (2) in 1992, Brown pled guilty in federal court in West Virginia to conspiring to transport firearms and illegal drugs, for which he was sentenced to three years in prison, followed by five years of supervised release. The court also observed that Brown had been convicted of attempted petit larceny in 1981. Id. at 4-6.

In the Notice of Hearing, the court also identified several "underlying facts for [Brown's prior] offenses and other matters pertaining to [Brown's] history and character and criminal conduct." Id. at 6. These facts included: (1) the circumstances underlying his federal conviction, including his alleged assault of a law enforcement officer; (2) Brown's present conviction violated the conditions of his federal supervised release term; (3) the gun, drugs, and cash found in the closet in Brown's apartment, which had been suppressed at trial; and (4) the circumstances surrounding the present conviction, including Brown's admission to participating in the gunfight and disposing of the firearms after the fight, and the serious injuries to the boy. Id. at 6-8.

On August 14, 1997, following the issuance of the Notice of Hearing, Justice Starkey, who presided at Brown's trial, held a hearing pursuant to N.Y. CPL § 400.20 to determine whether Brown should receive an enhanced sentence as a discretionary persistent felony offender. After a brief presentation by the prosecutor, the court found that each of Brown's prior convictions qualified as predicate felony offenses. Sent. Tr. I.A at 11; see N.Y. Penal Law § 70.10(1)(b). The court then heard arguments on whether Brown should receive an enhanced sentence as a persistent felony offender. Sent. Tr. I.A at 11-17.

The prosecutor argued in favor of the enhancement, which, as noted above, would require the court to impose an indeterminate term with a minimum of between 15 and 25 years imprisonment and a maximum of life imprisonment.*fn3 Specifically, the prosecutor sought a minimum sentence of 25 years based on the following facts: (1) Brown's co-defendant, Miller, had been sentenced to sixteen years to life; (2) Brown's present conviction occurred while he was on supervised release from his 1992 federal conviction; (3) that federal conviction had involved the transportation of large amounts of cocaine in exchange for firearms; (4) in the present case, Brown admitted that he had possessed four guns at his home that evening and that he had distributed and participated in using those guns; and (5) the suppressed evidence found in the closet in Brown's apartment. Id. at 11-13.

Brown's counsel argued against sentencing Brown as a discretionary persistent felony offender and instead asked the court to sentence him as a predicate felon under N.Y. Penal Law § 70.04 to a term of imprisonment of five to seven years. Sent. Tr. I.A at 13-15. Counsel objected to the court's consideration of the suppressed evidence (which, she argued, belonged to Brown's brother) and asked the court to consider various mitigating circumstances surrounding his present conviction, including that Brown had turned himself in to the police and admitted his involvement in the gun fight, that the injured boy's mother herself was asking for leniency for Brown, and that Brown had reacted to threats from the person who killed his brother. Id. Brown also testified and asked the court for mercy. Id. at 16-17. Following Brown's testimony, the court adjourned.

On September 16, 1997, the parties again appeared for sentencing. The prosecutor again asked that Brown be sentenced to 25 years to life, the maximum possible sentence as a persistent felony offender, and cited many of the same reasons she advanced at the August hearing. Sent. Tr. I.B at 2-7. The prosecutor also added that the only reason Brown's prior convictions did not automatically elevate his sentence under the mandatory terms of the persistent violent felony offender statute was because his 1992 federal conviction was for conspiracy to deal firearms and narcotics, rather than for the substantive offenses he committed in furtherance of the conspiracy. Sent. Tr. I.B at 2-3, 6-7. Defense counsel made arguments similar to the ones made at the earlier proceeding, and again objected to, among other things, the court's consideration of the suppressed evidence. Id. at 10-12. Once again, the court postponed sentencing.

On September 23, 1997, the sentencing court, without comment from either the prosecution or the defense, sentenced Brown as a persistent felony offender to 15 years to life. Sent. Tr. I.C at 4. The court noted that it was doing so "with reluctance and some reservation" because it felt that an appropriate sentence was somewhere between the seven-year maximum available without the enhancement and the fifteen-year minimum prescribed by the persistent felony offender statute, but that "all the facts in the defendant's background and record . . . called for [the greater] sentence." Id. at 2-3.

2. The First Appeal

Brown appealed his conviction and sentence to the Appellate Division of the New York State Supreme Court, Second Department, raising three claims: (1) the evidence was insufficient to establish his conviction on the gun charge; (2) the jury instruction on constructive possession was erroneous; and (3) the court improperly sentenced him as a persistent felony offender. See App. Br. I.

On January 31, 2000, the Appellate Division affirmed Brown's conviction, rejecting his sufficiency claim as both unpreserved for appellate review and without merit and his jury instruction claim as without merit. People v. Brown, 268 A.D.2d 593, 704 N.Y.S.2d 83, 84 (2d Dep't 2000). However, it vacated Brown's sentence because the sentencing court had failed to follow the "`two-pronged analysis'" mandated by New York law. Id. (quoting People v. Smith, 232 A.D.2d 586, 649 N.Y.S.2d 444 (1996)). The court stated that before a defendant could be sentenced as a persistent felony offender, the sentencing court had to make two determinations:

First, the court must determine if the defendant is a persistent felony offender as defined in [N.Y.] Penal Law § 70.10(1), namely, that he previously has been convicted of at least two felonies. Second, the court must determine "if the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest."
Brown, 704 N.Y.S.2d at 84 (quoting N.Y.Crim. Proc. Law § 400.20). Because the sentencing court failed to "set forth on the record its reasons for finding the second element present," and "it was impossible to ascertain what conduct or circumstances the court relied on in determining that the second prong of the persistent felony offender analysis was satisfied," the Appellate Division remanded Brown's case for sentencing. Brown, 704 N.Y.S.2d at 84.

3. The Resentencing

On March 2, 2000, Brown appeared for resentencing before the same sentencing court. The prosecutor argued that the Appellate Division's opinion had not reopened the court's determination that Brown should be sentenced as a persistent felony offender, but required only that the court state the factors it had previously considered in making that determination. Sent. Tr. II.A at 3-4, 10. The prosecutor then reminded the court of the factors she had cited in 1997 in support of the enhanced sentence, including that: (1) Brown's 1983 sentence for robbery and assault did not rehabilitate him, since he returned to crime a few years after being released in 1988 and was convicted in federal court in 1992; (2) his sentence for conspiring to deal drugs and cocaine also did not steer Brown away from further crime; (3) Brown was acquitted of several other serious charges related to his present conviction, and the events surrounding those charges contained several aggravating factors, including Brown's distribution of guns to his friends before they engaged in the gun battle; (4) a firearm, ammunition, drugs and a large amount of cash (i.e., the suppressed evidence) had been found in the locked closet in Brown's apartment; (5) Miller, Brown's co-defendant, had been sentenced as a persistent violent felony offender to 16 years to life in prison; and (6) if Brown's federal drug and firearm case had resulted in prosecution and conviction under New York state law, Brown would have been sentenced as a persistent violent felony offender. Id. at 4-12, 26.

Brown's counsel*fn4 objected to the prosecutor's argument that the remand from the Appellate Division called only for clarification, and argued that Brown should not be sentenced as a persistent felony offender because: (1) he had provided substantial assistance to the government's investigation into the drug and gun conspiracy in 1991; (2) there were several mitigating circumstances surrounding his present conviction, including the fact that his brother had been shot that day by the people outside his apartment; (3) the evidence seized from the closet was not Brown's and had been suppressed at trial, and thus should not be considered at all; (4) Brown had not admitted to distributing the firearms to his friends, only to disposing of them, and that the statement that he had distributed the guns, which came from a co-defendant, had also been suppressed; (5) Brown had been rehabilitated while in prison and was currently a model prisoner; and (6) Miller was sentenced as a persistent violent felony offender due to four previous violent felony convictions, so his sentence was not relevant given Brown's situation and mitigating circumstances. Id. at 13-25.

When Brown's attorney began to argue that the court should not consider the evidence found in the closet, the sentencing court specifically asked the prosecutor for any authority to support the court's "consideration of suppressed evidence on a proceeding such as this." Id. at 16. The prosecutor stated she could not point to the precise section of the code, but "a court can consider things which are outside the purview of the trial." Id. at 16.*fn5 The sentencing court acknowledged this principle, but stated that it did not "think the rule speaks [to whether] everything and anything out of the purview of the trial may be considered." Id. at 17. The prosecutor replied that "[w]hatever weight this [sentencing court] chooses to give" the suppressed evidence, it was still "a factor and ...

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