Apprendi in New York

Brown v. Greiner, New York Law Journal, March 31, 2003 (EDNY). "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 beyond a reasonable doubt. This violated the rule in Apprendi . Id at 490. 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."

People v. Horne , No. 24 (NY March 14, 2002). Defendant was convicted of offering a false instrument for filing and ordered to pay restitution equal to the benefit overpayments. On appeal, defendant claimed that the restitution order was illegal. Among the points raised was an Apprendi violation. Since the trial court's factual determination of restitution did not enlarge the maximum penalty for the offense, it did not violate Apprendi."Restitution falls within the range of sentences available for any offense in New York; it is not a post-conviction sentencing enhancement mechanism analogous to the New Jersey statute addressed in Apprendi." Moreover, restitution in this context was compensatory, not punitive.

People v. Rosen,96 N.Y.2d 329, 728 N.Y.S.2d 407 (2001). Defendant with two prior felony convictions was convicted after trial of 1st Degree Sexual Abuse. The trial court sentenced him to 25 years to life as a persistent felony offender. On appeal, he raised for the first time an Apprendi challenge to New York's discretionary persistent felony offender statute, among other issues. The Court of Appeals rejected it concluding: "Defendant had no constitutional right to a jury trial to establish the facts of his prior felony convictions." The remaining issues were rejected or unpreserved. Read more about the case in State's Persistent Felon Law Held Constitutional, New York Law Journal, April 4, 2001