This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 84
The People &c.,
            Respondent,
        v.
Michael E. Prindle,
            Appellant.




          James A. Hobbs, for appellant.
          Leah R. Mervine, for respondent.
          The Legal Aid Society, amicus curiae.




WILSON, J.:
          "This appeal presents another Apprendi challenge to New
York's discretionary persistent felony offender sentencing
scheme. The primary issue before us is whether, in light of
[Alleyne v United States, (133 St Ct 2151 [2013])], this
sentencing scheme violates Apprendi and defendant's due process
and Sixth Amendment rights. We again uphold the constitutionality

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of New York's discretionary persistent felony offender sentencing
scheme and further hold that defendant's constitutional rights
were not violated" (People v Quinones, 12 NY3d 116, 119).
                                 I.
          The Sixth and Fourteenth Amendments guarantee criminal
defendants in state courts "the right to a speedy and public
trial, by an impartial jury."   To satisfy that right, the People
must prove each element of a crime beyond a reasonable doubt.
Among those elements is any fact -- other than one admitted by
the defendant or involving the mere fact of a prior felony
conviction (Almendarez-Torres v United States, 523 US 224 [1998])
-- that has the effect of increasing the prescribed range of
penalties to which a defendant is exposed (see Apprendi, 530 US
at 489-490).   For nearly two decades, the United States Supreme
Court has applied the Apprendi rule in cases involving capital
punishment (Hurst v Florida, 136 S Ct 616 [2016]; Ring v Arizona,
536 US 584 [2002]), broad judicial discretion to find aggravating
factors (Cunningham v California, 549 US 270 [2007]; Blakely v
Washington, 542 US 296 [2004]), the federal sentencing guidelines
(United States v Booker, 543 US 220 [2005]), and mandatory
minimum sentences (Alleyne, 133 S Ct 2151).
          Each successive decision of the Supreme Court has
brought renewed challenges to the constitutionality of New York's
persistent felony offender statute.     From the first of those
challenges, we have held that the statute (Penal Law § 70.10 [1]


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[a]), falls within the exception provided by Almendarez-Torres,
and thus outside the scope of the Apprendi rule, because it
exposes defendants to an enhanced sentencing range based only on
the existence of two prior felony convictions (People v Giles, 24
NY3d 1066 [2014]; People v Battles, 16 NY3d 54 [2010]; People v
Quinones, 12 NY3d 116 [2009]; People v Rivera, 5 NY3d 61 [2005];
People v Rosen, 96 NY2d 329 [2001]).1   As we have consistently
explained, the existence of those prior convictions -- each the
result of either a guilty plea or a jury verdict -- is the "sole
determinant of whether a defendant is subject to recidivist
sentencing as a persistent felony offender" (Rivera, 5 NY3d at
66, citing Rosen, 96 NY2d at 335).    Only after the existence of
those prior convictions is established and the maximum
permissible sentence raised does Supreme Court have "the
discretion to choose the appropriate sentence within a sentencing
range prescribed by statute" (Quinones, 12 NY3d at 129; see Penal
Law § 70.10 [2]).2

     1
       Although an "especially long and disturbing history of
criminal convictions" is one factor a judge may consider in
determining where in the expanded range to sentence a defendant
(Rivera, 5 NY3d at 70), no assessment of the nature of the crimes
underlying the prior convictions is called for by the initial
persistent felony offender adjudication.
     2
       Persistent felony offender statutes that require a judge
to rely on traditional sentencing factors before exposing a
defendant to an expanded sentencing range impermissibly infringe
upon the province of the jury (Cunningham, 549 US at 290).
However, Apprendi and its successors uniformly uphold sentencing
laws that allow for such discretion after the defendant is
determined to be eligible for the expanded sentencing range (see
e.g. Alleyne, 133 St Ct at 2163; Blakely, 542 US at 309;
Apprendi, 530 US at 481). Our Penal and Criminal Procedure Laws,

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          "The court's opinion is, of course, subject to
appellate review, as is any exercise of discretion. The Appellate
Division, in its own discretion, may conclude that a persistent
felony offender sentence is too harsh or otherwise improvident"
and reduce it in the interest of justice to a sentence within the
statutory range fixed by the legislature for the crime of
conviction, without regard to the persistent felony offender
enhancement (Rivera, 5 NY3d at 68-69). "In this way, the
Appellate Division can and should mitigate inappropriately severe
applications of the statute" (id.).
          In other words, the statute mandates a two-part
process: in step one, the court adjudicates the defendant a
persistent felony offender if the necessary and sufficient fact
of the two prior convictions is proved beyond a reasonable doubt,
thereby exposing him to the sentencing range applicable to such
offenders; in step two, it evaluates what sentence is warranted
and sets forth an explanation of its opinion on that question for
the record (see Penal Law § 70.10 [2]; Rivera, 5 NY3d at 68).
          Although Rivera and several of our cases following it
include dissents questioning the soundness of our construction of
New York's persistent felony offender statute (Giles, 24 NY3d at
1073-1076 [Abdus-Salaam, J., dissenting]; Battles, 16 NY3d at 49-
68 [Lippman, Ch. J., dissenting in part]; Rivera, 5 NY3d at 71-76
[Kaye, Ch. J., dissenting]; Rivera, 5 NY3d at 76-83 [Ciparick,

as construed by Rosen, Rivera and their progeny, outline
precisely such a law.

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J., dissenting]), that construction has withstood both Sixth
Amendment scrutiny and the test of time.3   For the reasons
elaborated in our prior cases and the principle of stare decisis,
our construction withstands Mr. Prindle's suit as well.
                               II.
          In addition to asking us to discard our well-settled
construction of the persistent felony offender statute
established in Rosen, Rivera, Quinones, Battles, and Giles (a
decision that would require us to strike down the statute as
unconstitutional and hold the sentence at issue illegal), Mr.
Prindle argues that the Supreme Court's recent extension of
Apprendi to increases in the mandatory minimum of a sentencing
range requires us to declare that the statute, even as construed
in our prior caselaw, violates the Sixth Amendment.   His argument
is unavailing because the persistent felony offender statute
never increases the mandatory minimum sentence to which a
persistent felony offender is exposed.   Instead, persistent
felons are subject to the same mandatory minimum as non-
recidivist offenders guilty of the same crime.




     3
       Even the detractors of our construction of the statute
admit that the statute, as construed by this Court, is
unquestionably constitutional (Rivera, 5 NY3d at 72 [Kaye, Ch.
J., dissenting] ["I agree that the statutory scheme the Court
describes would pass constitutional muster"]; State v Bell, 283
Conn 748, 808 [2007] ["the majority's construction of the New
York statute places it squarely outside the Apprendi
proscription"]).

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            In Alleyne v United States, the Supreme Court applied
Apprendi and remanded for resentencing the case of a defendant
who was subjected to an increased, mandatory minimum term of
imprisonment based on a judicial finding that he had brandished,
rather than merely used or carried, a firearm in relation to a
crime of violence (Alleyne, 133 S Ct at 2155; 18 USC § 924 [c]
[1] [A]).   Overruling Harris v U.S. (536 US 545 [2002]), which
had limited Apprendi to cases increasing the maximum sentence,
the Court held that "a fact that increases either end of the
[sentencing] range produces a new penalty and constitutes an
ingredient of the offense" that must be proved to a jury beyond a
reasonable doubt (id. at 2160).
            New York's persistent felony offender statute, however,
does not increase the mandatory minimum sentence for defendants
determined to be persistent felony offenders.   After determining,
on the sole basis of the predicate felonies, that a defendant is
to be adjudicated a persistent felony offender, a sentencing
court may choose to sentence that defendant to at least fifteen
years in prison but also "retains its discretion to hand down a
sentence as if no recidivism finding existed" (Rivera, 5 NY2d at
68; Penal Law § 70.10 [2] [instructing judges that they may
impose an A-1 sentence]).   Moreover, after a defendant has been
"adjudicated as a persistent felony offender" during step one,
"the People retain the burden to show that the defendant deserves
the higher sentence" (Rivera, 5 NY3d at 68).    Thus, even though


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Mr. Prindle is a persistent felony offender, the minimum sentence
he could have received has never changed.   Although a judge, in
sentencing a persistent felony offender, is limited to sentences
in a non-continuous range composed of both a lower register (the
sentence authorized by Penal Law §§ 70.00, 70.02, 70.04, 70.06 or
70.80 [5] for the crime of which the defendant stands convicted)
and an upper one (the sentence authorized by that section for a
class A-1 felony, or between 15 and 25 years to life), the floor
of that expanded range remains -- as the sentencing court in this
case recognized -- the floor faced by offenders who have not been
adjudicated persistent felony offenders (see Portalatin v Graham,
624 F3d 69, 89 n 12 [2010]).4




     4
       Mr. Prindle makes much of the discontinuity between the
sentencing range's two registers. Such discontinuities, however,
are not unique to New York's persistent felony offender statute,
are of no constitutional moment, and have been approved in
previous Apprendi contexts. The range for persistent felony
offenders in New York -- the perigee and "apogee of potential
sentences authorized based on factual predicates obtained in
compliance with the Sixth Amendment: those found by the jury,
those admitted by the defendant, and findings of recidivism"
(Portalatin, 624 F3d at 88) -- resembles the range for offenders
subject to the permissible portion of the California Determinate
Sentencing Law at issue in Cunningham, which (as relevant)
invited judges to exercise their discretion in deciding whether
to sentence offenders to a lower term sentence of 6 years or a
higher term sentence of 12 years, but did not empower them to
sentence offenders to any term in between (Cunningham, 549 US at
278). The sentencing scheme in Cunningham was not struck down on
that basis. Accordingly, we respect the legislature's power to
prescribe an appropriate sentencing range and consider this
equivalent to a case in which that range's two registers were
overlapping or adjacent to one another.

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          In attempting to apply Alleyne to the facts of this
case, Mr. Prindle contends that judges sentencing defendants in
accordance with the New York persistent felony offender statute
are engaged in not a two- but a three-step process. In step one,
the court relies on prior convictions to determine whether a
defendant is a persistent felony offender; in step two, it relies
on "the history and character of the defendant and the nature and
circumstances of his criminal conduct" to form an opinion about
whether she should be sentenced as a non-recidivist or as a
persistent felony offender; and, in step three, it relies on
traditional sentencing factors to announce a sentence within
whichever range was dictated by the results of step two.    It is
at the end of step two, on this view, that judicial factfinding
has impermissibly increased the minimum sentence to 15 years to
life.
          As we have repeatedly construed New York's persistent
felony offender statute, it calls for sentencing courts to
proceed in two steps, not three (see Rivera, 5 NY3d at 64
[explaining "the two-part nature of the proceeding"]).   Mr.
Prindle is attempting to create a Sixth Amendment violation where
one does not exist by artificially cleaving step two into
distinct pieces.   What Mr. Prindle treats as steps two and three
-- although they may occur on different days -- are really a
single inquiry: where within the expanded range authorized by
step one the actual sentence should fall.   As we explained in


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Rivera, "[i]n practical terms, the legislative command that
sentencing courts consider the defendant's 'history and
character' and the 'nature and circumstances' of the defendant's
criminal conduct merely makes explicit what sentencing courts
have always done in deciding where, within a range, to impose a
sentence .   .   .   The practice .   .   .   falls squarely within the
most traditional discretionary sentencing role of the judge"
(Rivera, 5 NY3d at 69; see id. at 71 [reiterating that "the
requirement that the sentencing justice reach an opinion as to
the defendant's history and character is merely another way of
saying that the court should exercise its discretion"]; Giles, 24
NY3d at 1071-1072 [Smith, J., concurring]; Quinones, 12 NY3d at
130; Rosen, 96 NY2d at 335).     Although the judge in this case
announced that he planned to sentence Mr. Prindle within the
upper register of the expanded range before hearing argument
about where within that register his precise sentence should
fall, his decision to be transparent about the court's intentions
did not trespass on the Sixth Amendment. Nor was either the
sentencing court or the Appellate Division prohibited from later
deciding a sentence within the lower register would be the more
appropriate punishment.     In short, the minimum sentence did not
increase because the lower courts always retained the discretion
to sentence defendant "as if no recidivism finding existed"
(Rivera, 5 NY3d at 68).




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          Even were Mr. Prindle correct in characterizing New
York's persistent felony offender statute as increasing the
sentencing floor for persistent felony offenders, that increase
would not be the result of impermissible judicial factfinding.
The increase in the floor to 15 years -- like the increase in the
ceiling to life -- would be based solely on the existence of two
prior felony convictions.   Indeed, as Alleyne is a mere
application of the Apprendi rule (Hurst, 136 S Ct at 621) and as
its central contention is that there is "no basis in principle or
logic to distinguish facts that raise the maximum from those that
increase the minimum" (Alleyne, 133 S Ct at 2163) -- or, to put
it another way, to distinguish Apprendi from Alleyne -- it
follows that the same construction that shelters our persistent
felony offender regime from Apprendi would also save it from the
latter case.
                               III.
          For the foregoing reasons, we reaffirm our construction
of the persistent felony offender statute and our conclusion that
the statute falls squarely within the exception afforded by
Almendarez-Torres.
          We encourage sentencing courts and all parties engaged
in these determinations to be careful to apply the persistent
felony offender statute as we have construed it in Rivera and
Quinones, a construction that is also thoroughly set out in the




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Second Circuit's opinion in Portalatin v Graham (64 F3d 69
[2010], supra).
            The sentencing court in this case followed the
statutory procedure in determining that Mr. Prindle is, and
should ultimately be sentenced as, a persistent felony offender.
Accordingly, the order of the Appellate Division should be
affirmed.
*   *   *     *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Wilson. Chief Judge DiFiore
and Judges Rivera, Stein and Garcia concur. Judges Fahey and
Feinman took no part.

Decided June 29, 2017




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