The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Petitioner Jamel Witherspoon petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction following trial of one count of attempted robbery in the third degree and one count of criminal possession of a weapon in the fourth degree. Petitioner alleges that the State violated his constitutional rights to a jury trial and due process when it sentenced him as a discretionary persistent felony offender based on facts not submitted and found beyond a reasonable doubt by a jury. For the following reasons, the petition is denied.
The following facts, adduced from the instant petition and underlying record, are not in dispute for purposes of this petition.
On December 27, 1999, at approximately 11:30 p.m., on the corner of Belmont Avenue and Bradford Street in Brooklyn, James Griffin called 911 to report that his car had been stolen. (Aff. in Opp. to Pet. for a Writ of Habeas Corpus ¶ 4 (hereinafter "Resp. Aff.")). As Griffin waited for the police to arrive, two men, later identified as Witherspoon and Cecil Middleton, passed by him in a car, then got out of the car and walked toward him. (Id.; Pet. for a Writ of Habeas Corpus at 4 (hereinafter "Pet.")). Middleton, petitioner's co-defendant, then pointed a gun at Griffin and said "run your [expletive]," which Griffin understood as a demand for his leather jacket. (Pet. at 4). Griffin ran and Witherspoon and Middleton chased him. (Id.). Three detectives on patrol in an unmarked police vehicle saw Witherspoon and Middleton chasing Griffin. (Resp. Aff. ¶ 5). The detectives pursued and eventually apprehended them. (Id.).
B. Pre-trial and Trial Procedures
Witherspoon and Middleton were both charged in Kings County with two counts of attempted robbery in the second degree in violation of New York Penal Law §§ 110.00, 160.10, [B], one count of attempted robbery in the third degree, in violation of New York Penal Law §§ 110.00, 160.05, attempted grand larceny in the fourth degree, in violation of New York Penal Law §§ 110.00, 155.30, and criminal possession of a weapon in the fourth degree, in violation of New York Penal Law § 265.01. (Resp. Aff. ¶ 6).
Witherspoon was tried before a jury and found guilty of one count of attempted robbery in the third degree, a Class E felony, and one count of criminal possession of a weapon in the fourth degree, a Class A misdemeanor. (Id. ¶ 7).
Witherspoon was sentenced on January 3, 2001. (Sent. Tr.*fn1 at 1). At sentencing, the People requested that the trial court sentence Witherspoon as a persistent felony offender pursuant to New York Penal Law § 70.10. New York Penal Law § 70.10(1)(a) defines a persistent violent felony offender as a "[p]erson who stands convicted of a felony after having previously been convicted of two or more felonies." Under the statute, such a person may receive an enhanced sentence if the sentencing 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." Id. § 70.10(2). Witherspoon faced a sentencing range under the persistent felony offender calculus of fifteen years to life in jail.
In support of the People's request, the Assistant District Attorney submitted certificates of disposition for Witherspoon's three prior felony convictions, as well as additional evidence confirming his prior convictions and sentences. (Sent. Tr. at 5 -14). The Assistant District Attorney argued to the court that it should impose the sentence under the persistent felony offender range given
[T]his defendant's history and in light of the fact that he has used numerous aliases, the defendant is now twentyfive or twenty-six years old, and in light of the fact that he is very young, he has three felony convictions . . . . And it [is] interesting to know each time the defendant has been incarcerated and paroled he almost always goes out and commits further crimes . . . . This defendant commits crimes, violent crimes and he's been convicted of violent felony offenses, your Honor, and it is the People's contention that any term of imprisonment less than the fifteen to life would be doing a severe injustice to the citizens of this county . . . .
Witherspoon did not contest the validity of the prior felony convictions and stipulated that "the defendant is eligible to be deemed a persistent felon at the court's discretion." (Id. at 5; see also id. at 4, 20-24). Witherspoon's attorney argued, however, that the trial court should exercise its discretion and not sentence Witherspoon as a persistent felony offender because his prior convictions did not involve violence or weapons and asked that Witherspoon "not be deemed classified as someone convicted of murder." (Id. at 22). In addition, Witherspoon's attorney submitted letters from the community and Witherspoon's family in support of a lesser sentence. (Id. at 23). Witherspoon's attorney also argued that Witherspoon should not be sentenced as a persistent felon because his ...