On February 9, 2007, the Defendant Ronald Daggett, was found guilty after a jury trial of the crimes of Driving While Intoxicated in violation of Section 1192 (3) of the Vehicle and Traffic Law, Driving While Ability Impaired by Drugs in violation of Section 1192 (4) of the Vehicle and Traffic Law, and other lesser offenses. Both of the foregoing crimes are class D felonies.

On March 8, 2007, the People filed a Statement and Pre-sentence Memorandum with the Court seeking to have the Defendant sentenced as a Persistent Felony Offender pursuant to Section 70.10 of the Penal Law.

On March 9, 2007, the Court issued an Order scheduling a hearing pursuant to Section 400.20 of the Criminal Procedure Law on April 4, 2007. On that date, the Defendant filed a Pre-Sentence Memorandum contesting certain convictions set forth in the People's Statement and Pre-Sentence Memorandum because the Defendant was not sentenced to a term of imprisonment in excess of one year as required by Section 70.10(1)(b)(i) of the Penal Law. The People concede that these particular convictions may not serve as a predicate for the imposition of persistent felony offender sentencing but contend that they are relevant under Section 70.10(2) involving the issue of the Defendant's "history and character" and the "nature and circumstances of his criminal conduct." [*2]

The Defendant additionally contends that the Defendant's conviction for Driving While Intoxicated in Madison County, New York, on December 9, 1991, and his conviction for Driving While Intoxicated in this Court on September 13, 1999, both felonies, for which he was sentenced in excess of one year ^[FN1], may not be used because the plea allocution in both cases was insufficient.

The Defendant further contends that Section 70.10 of the Penal Law is unconstitutional and runs afoul of the United States Supreme Court's holdings in Blakely v. Washington, 543 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005).

Finally, the Defendant contends that treatment of the defendant pursuant to Section 70.10 of the Penal Law would be unduly harsh.

On April 4, 2007, a hearing was conducted in this Court. In addition to the foregoing issues being discussed, the People requested that the Court take judicial notice of the Pre-Sentence investigations filed in the Defendant's previous cases pursuant to Section 400.20(5) of the Criminal Procedure Law. The Defendant presented testimony from Sandra Reynolds, the Defendant's mother, and Ruby Gloss, the Defendant's fiancé, urging the Court not to sentence the Defendant as a Persistent Felony Offender. On May 14, 2007 the hearing was continued so that both parties could present any legal arguments or objections of a constitutional nature concerning the pleas from the underlying predicate felony convictions in this Court on March 13, 1999, and Madison County Court on October 15, 1991. These transcripts received in evidence as Exhibits One and Two are annexed hereto, and made a part of this Decision and Order.

Section 70.10 of the Penal Law defines a persistent felony offender as a person...

"...who stands convicted of a felony after having previously been convicted of two or more felonies , as provided in paragraphs (b) and (c) of this subdivision"^[FN2]

Subsection (b)(i) requires that a sentence of "imprisonment in excess of one year" has been imposed, and subsection (b)(ii) requires that " ...the defendant was imprisoned under sentence for such conviction prior to the commission of the present felony."^[FN3]

Subsection (2) of this statute further provides;

"Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent felony offender, and when it 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, the court in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04, 70.06 or subdivision five of section 70.80 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-1 felony. In such event the reasons for the court's opinion shall be set forth in the record." [*3]

Section 400.20 of the Criminal Procedure Law sets forth the procedures the court must follow in such a sentencing proceeding.^[FN4]

The Defendant contends that this Section of the Penal Law is unconstitutional pursuant to the United States Supreme Court's holdings in Blakley v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), because;

"In those landmark decisions, the United States Supreme Court established that a Judge cannot consider facts in sentencing which have not been determined by a jury."^[FN5]

Both Blakley v. Washington and United States v. Booker, had their genesis in the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). In that case the Supreme Court held that the Due Process Clause of the Fourteenth Amendment and the Sixth Amendment guarantee to trial by jury required that any factual determination which authorized an increase beyond the maximum prison sentence set by statute, must be made by a jury, on the basis of proof beyond a reasonable doubt. Departing from its holding in McMillan v. Pennsylvania, 477 U.S. 79 (1986) which sanctioned the use of "sentencing enhancements", Justice Stevens, writing for the majority ^[FN6] observed;

"As a matter of simple justice, it seems obvious that the procedural safeguards designed to protect Apprendi from unwarranted pains should apply equally to two acts that New Jersey has singled out for punishment. Merely using the label sentencing enhancement' to describe the latter surely does not provide a principled basis for treating him differently."( 530 U.S. 466, 476)

In Apprendi, the defendant had been convicted of two counts of second-degree possession of a firearm for an unlawful purpose ^[FN7] and one count of unlawful possession of an anti-personnel bomb ^[FN8] resulting from an incident in which he had fired shots into a home, whose occupants were African-American, in a New Jersey suburb. At sentencing, the judge found, by a preponderance of the evidence, that the crime was motivated by racial bias, and sentenced the defendant above the statutory maximum sentence.

In arriving at its determination, the Court carved out an important exception applicable to the case at bar. Recalling its holding in Almendarez-Torres v. United States, 523 U.S.224 (1998), it held that the "fact" of a prior conviction was exempted from the reach of the Apprendi ruling. In discussing Almemndarez-Torres, Stevens wrote;

"Rejecting Almendarez-Torres objection, we concluded that sentencing him to a term higher [*4]than that attached to the offense alleged in the indictment did not violate the strictures of Winship in that case. Because Almendarez-Torres had admitted the three earlier convictions for aggravated felonies all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own —no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court."(Supra., at 488)

On this issue, he further declared;

"Both the certainty that procedural safeguards attached to any fact' of prior conviction, and the reality of Almendarez-Torres did not challenge the accuracy of that fact' in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a fact' increasing punishment beyond the maximum of the statutory range."(ibid.)

In distinguishing the use of a prior conviction from other sentencing enhancements, Stevens

further opined;

"Moreover there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof."(id., at 496)

Ultimately, he summarized the Court's new rule, declaring;

In sum, our reexamination of our cases in this area and the history upon which they rely, confirms the opinion we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."(infra., at 489 emphasis added)

The following April, the New York Court of Appeals addressed the constitutionality of Section 70.10 in light of the Supreme Court's holding in Apprendi. In People v. Rosen 96 NY2d 329, (April 3, 2001), Judge George Bundy Smith writing for a unanimous bench affirmed the constitutionality of the statute, observing;

"Under New York law, to be sentenced as a persistent felony offender, the court must first conclude that the defendant had previously been convicted of two or more felonies for which a sentence of over one year was imposed. Only after it has established that the defendant is a twice prior convicted felon may the sentencing court, based upon a preponderance of the evidence, review matters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct...established by any relevant evidence, not legally privileged' to determine whether to actually issue an enhanced sentence (CPL 400.20[5]). It is clear from the statutory framework that the prior felony convictions are the sole determinate of whether a defendant is subjected to enhanced sentencing as a persistent felony offender. Then the court must consider other enumerated factors to determine whether it is of the opinion that a [*5]persistent offender sentence is warranted' (CPL 400.20[9]). As the latter, the sentencing court is thus only fulfilling its traditional role-giving due consideration to agreed-upon factors - -determining an appropriate sentence within the permissible statutory range (see, People v Farrar, 52 NY2d 302, 305-6). Defendant had no constitutional right to a jury trial to establish the facts of his prior convictions ( see, Apprendi, supra , 530 U.S., at 488).(96 NY2d 329, 334-5)

On March 27, 2003, United States District Court Judge, John Gleeson, of the Eastern District of New York held that the New York Court of Appeals had misapplied Apprendi in People v. Rosen, supra , and granted a writ of habeas corpus for a state prisoner sentenced pursuant to Section 70.10 of the Penal Law. During his discussion of Apprendi in his opinion in Brown v. Greiner, 258 F. Supp. 2d 68 (March 27, 2003), Judge Gleeson acknowledged the exception carved out by the Supreme Court concerning the use of prior convictions for enhanced sentencing (See, 258 F.Supp. 2d 68, 83-6). In discussing the reasons for this exception, he noted;

"One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense, and certainly unlike the factor before us in this case, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees."(Id., at 84)

Turning to the New York Court of Appeals decision in Rosen, supra , he declared;

"I also have no difficulty concluding that Rosen's conclusion is opposite to that reached by the Supreme Court in Apprendi on a question of law."(supra ., at 90)

He went on to observe;

"The New York Court of Appeals rejected the claim, concluding that [i]t is clear from...the statutory framework that the prior felony convictions are the sole determinate of whether a defendant is subject to enhanced sentencing as a persistent felony offender' Id. at 335 (emphasis added). Regarding the factual findings required by the second element of the statute, the Court of Appeals stated that the sentencing court is Only fulfilling its traditional role - giving due consideration to agreed-upon factors - in determining an appropriate sentence within the permissible statutory range' Id.

With respect, the first of those observations is descriptively inaccurate. It could not be clearer that the prior felony convictions are not the sole determinant of whether a defendant is sentenced as a discretionary persistent felony offender. No such sentence complies with New York law unless, in addition to finding the prior convictions, the sentencing judge makes findings of fact, after a hearing that the defendant's history and character also warrant the enhanced sentence. New York Penal Law Section 70.10 (2); see, supra .

Second, Rosen's conclusion that, in finding the facts (other than the fact of a prior convictions) warrant extended incarceration under the persistent felony offender statute, the sentencing court is only fulfilling its traditional role' is wrong. The Supreme Court reached the opposite conclusion; where, as in Brown's case, an enhanced statutory maximum only exists if the judge makes certain factual findings at sentencing, the judge's role is novel[ ]'not traditional, and the [*6] historic link between verdict and judgment' has been broken. Apprendi. 530 U.S. at 482-3, 120 S. Ct. 2348. To say, as the New York Court of Appeals has in Rosen, that those findings are analogous to traditional' sentencing considerations elevates form over substance, for the enhanced sentencing may not be imposed without them. Apprendi 530 U.S. at 494, 120 S. Ct 2348. The question following Apprendi is whether the findings regarding the history and character of the defendant and the nature and circumstances of his criminal conduct exposed Brown to a greater punishment than that authorized by the jury's verdict. Id. Because the answer to that question is yes,' Brown's sentence violated his rights under the Due Process Clause of the Fourteenth Amendment. The contrary conclusions of the New York courts violated the clear mandate of Apprendi.

New York could, consistent with Apprendi, have a sentence-enhancing provision that subjects all persons convicted of a class D felony who have two prior felony convictions to the possibility of being sentenced as though they had been convicted of an A-1 felony. It could also guide the discretion of sentencing courts in those cases, such as by telling them to sentence the defendant more harshly than the maximum authorized by the offense of conviction only when they have 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. Further, New York could require that the sentencing court set forth in the record the reasons for its opinion (including any factual findings) to permit appellate review, for example. Such a regime would be permissible because at the moment of conviction, the defendant faced the possibility of life in prison based on the fact of his prior convictions alone.

Rosen assumes that the foregoing describes the persistent felony statute at issue here. But it does not; based solely on the jury's verdict finding Brown guilty of criminal possession in the third degree, the maximum sentence that he could have received was seven years. This was so, because in New York, a discretionary persistent felony offender may not legally receive an enhanced sentence unless the court makes factual findings that support its opinion' that an extended sentence is appropriate. In that respect, this case and Ring are identical, with one meaningless exception: whereas the Arizona statute in Ring specifically enumerated (and thus circumscribed) the aggravating factors that would justify the enhanced sentence, see, 122 S. Ct. At 2434-37, the New York statute does not. It requires only that they relate the history and character of the defendant or the nature and conduct of his criminal conduct. But because both statutes require judicial findings, after a hearing, of at least one aggravating factor before the enhanced sentence is available, both violate Apprendi.

That some of the facts found by the sentencing court in Brown's case relate to his prior convictions does not matter. First, New York law is clear that the fact of the prior convictions, standing alone, is an insufficient basis for the finding required for the second prong of the statute. See, e.g. New York Penal Law Section 70.10(2); NY CPL Section 400.20; Perry, 555 NYS2d at 515. More is required to sustain the enhanced sentence, and it is precisely those additional facts (i.e. facts other than the fact of prior convictions) that bring the sentence into conflict with Apprendi. Second, aggravating facts relating to the prior convictions are no different than any other aggravating facts. For example the court in Brown's case relied on inter [*7]alia, his attack on a law enforcement officer when he was arrested in connection with his 1992 federal conviction. For purposes of the constitutional inquiry, that aspect of his prior conviction is indistinguishable from the fact' that contraband was found in the closet of his home, or from the fact' that his conduct in this case violated his supervised release. Apprendi precluded reliance on any of those facts to justify a sentence beyond the unenhanced maximum of seven years because Brown never had the right to a jury determination of them. In short, the rationale of the case explains why the exception to Apprendis's rule is stated as [o]ther than the fact of a prior conviction.'Thus, with the possible exception of facts that constitute an element of the offense, even facts relating to prior convictions fall outside the exception."(258 F. Supp. 2d 68, 90-93)

In concluding that the Brown's writ should be granted, Judge Gleeson wrote;

"To the extent that Apprendi was applied at all in this case and in Rosen, it was applied not just incorrectly, but unreasonably. The rule requires that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S. Ct. 2348. In applying that principle, the New York courts have held that only the fact of a prior conviction - not the additional facts required by NY Penal Law Section 70.10(2) and CPL 400.20 - enhances sentences under the persistent felony offender statute. That holding is unreasonable - it is flatly contradicted by both statutes, by New York caselaw, and by the procedural history of this very case." (infra)

The following year, the Supreme Court invalidated the State of Washington's sentencing guidelines which allowed the sentencing judge to sentence a defendant to a term of imprisonment above the standard range for an offense, after conducting a hearing into the existence of certain aggravating factors. In Blakely v. Washington, 542 U.S. 296, (Decided June 24, 2004), Justice

Scalia ^[FN9] restated the rule in Apprendi, writing;

"This case requires us to apply the rule we expressed in Apprendi v. New Jersey 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L. Ed2d 435 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt."(542 U.S., at 301)(emphasis added)

Likewise, the following year, the Supreme Court held that the United States Federal Sentencing Guidelines suffered from the same infirmity as Washington's and ran afoul of Apprendi, although here, it invalidated only those particular sections which made them binding on the sentencing court and which permitted de novo review of departures on appeal. In United [*8]States v. Booker, 543 U.S. 220, (Decided January 12, 2005) once again, Justice Stevens ^[FN10] reaffirmed the holding in Apprendi including the exception that prior convictions need not be submitted to a jury for determination.^[FN11] In this opinion, he appeared to put some flesh on the bones of the exception, (and which will be discussed further below) when he observed;

"Accordingly, we reaffirm our holding in Apprendi : Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (543 U.S. 220, 244) (emphasis added).

Later that year, the United States Court of Appeals for the Second Circuit in Brown v. Greiner, 409 F. 3d 523, (Decided June 3, 2005), reversed Judge Gleeson's holding in the court below. Addressing Judge Gleeson's analysis of the New York Court of Appeals holding in Rosen, supra , Judge Leval, writing for a unanimous panel,^[FN12] declared;

"...we do not believe that the Court of Appeals applied Apprendi unreasonably in distinguishing this judicial finding from the type of fact finding at issue in Apprendi. The fact at issue in Apprendi was whether the defendant's crime was committed with a purpose to intimidate...because of race, color, gender, handicap, religion, sexual orientation or ethnicity.'Id. At 468-69, 120 S. Ct. 2348 (internal quotation marks omitted). This fact was specifically enumerated in the statute as an essential element, or functional equivalent, that was necessary to sentence a defendant at the increased level." (409 F. 3d 523, 534)

Turning to Section 70.10 of the Penal Law, he went on to observe;

"The second determination to be made under New York's persistent felony offender statute is a very different sort. It is a vague, amorphous assessment of whether, in the court's opinion,', extended incarceration and life-time supervision' of the defendant will best serve the public interest.'See NY Penal Law Section 70.10(2). The New York Court of Appeals considered this exercise to be something quite different from the precise finding of a specific fact, as in the cases culminating in Apprendi. The Court stressed that unlike the specific factual finding of predicate felonies, which the court labeled the sole determina[nt]' of exposure to the enhanced sentence (and which is expressly excluded by the Supreme Court from the Apprendi rule), the other factor that determines whether the defendant will receive an enhanced sentence involves the sentencing court's fulfillment of its traditional role-giving due consideration to agreed-upon factors in determining an appropriate sentence within the permissible statutory range.' Rosen, 96 NY2d at 335, 752 NE2d at 847, 728 NYS2d at 410. We cannot say the New York Court of Appeals unreasonably applied Apprendi when it concluded that this second determination is something quite different from the fact-finding addressed in Apprendi and its predecessors. [*9]

We recognize that determining what sentence best serve[s] the public interest' under the statute turns on findings relating to the history and character of the defendant and the nature and circumstances of his criminal conduct.' NY Penal Law Section 70.10(2). The statute, however does not enumerate any specific facts that must be found by the sentencing court before it can conclude that the extended sentence is in the public's best... interest.' It was not unreasonable for the Court of Appeals to conclude that such determinations regarding the defendant's history, character, and offense fall into the different category from the essential statutory elements of heightened sentencing, or functional equivalents thereof, that were addressed by the Supreme Court's Apprendi ruling. We therefore conclude that the state court decisions affirming the Petitioner's sentences were not contrary to, or...an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." (409 F. 3d at 534-5)

On June 9, 2005, the New York Court of Appeals revisited and reaffirmed its decision in People v. Rosen, supra . In People v. Rivera, 5 NY3d 61, a divided court ^[FN13] held that Rosen was correctly decided, and that the several United States District Courts that had held to the contrary,^[FN14] were wrong. Judge Rosenblatt at the outset of the majority opinion, declared;

"Defendant asks us to overrule People v. Rosen, (96 NY2d 329[2001]), in which we sustained the constitutionality of Penal Law Section 70.10 and Criminal Procedure Law Section 400.20(5), the persistent felony offender statutes. After studying the Supreme Court's recent decisions derived from Apprendi v. New Jersey (530 U.S. 466[2001]), we uphold Rosen, the statutes, and defendant's sentence as a persistent felony offender."(5 NY3d 61, 63)

After discussing the facts of the defendant's sentencing, the Judge went on to recount the particular holding of Rosen, in which he stated;

"In Rosen this Court held that after the People have proved that a defendant is a twice-prior convicted felon, the sentencing court may review the history, character and criminality factors (CPL 400.20[5]) to determine whether to impose a recidivist sentence. More pertinently, we further held that this statutory framework makes it clear that the prior felony convictions are the sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender (Rosen, 96 NY2d at 335). This is in keeping with Penal Law Section 70.10(1)(a) which defines a persistent felony offender simply as a defendant with two prior felony convictions."(supra , at 66)

He went on to opine that although a defendant could not be sentenced as a persistent felony offender until the court makes the finding concerning the history and character pursuant to Section 400.20 of the Criminal Procedure Law, it was Section 70.10 of the Penal Law which controlled and defined who was a persistent felony offender.

Discussing the applicability of Apprendi, he observed; [*10]

"We could have decided Rosen differently by reading the statutes to require judicial factfinding as to the defendant's character and criminal acts before he became eligible for a persistent felony offender sentence. If we had construed the statutes to require the court to find additional facts about the defendant before imposing a recidivism sentence, the statutes would violate Apprendi. But we did not read the law that way. Under our interpretation of the relevant statutes, defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Thus, as we said in Rosen, no further findings are required. This conclusion takes the defendant's sentence outside the scope of the violations described in Apprendi and its progeny." (infra., at 67)

After discussing the findings and ultimate conclusion of the sentencing court, Rosenblatt re-emphasized the Court's position concerning the meaning of Rosen and its construction of the persistent felony offender sentencing scheme, stating;

"...the relevant question under the United States Constitution is not whether those facts were essential to the trial court's opinion (CPL 400.20[1][b]) but whether there are any facts other than the predicate felony convictions that must be found to make recidivist sentencing possible (see Blakely 542 U.S. at 303-4). Our answer is no. As we explained in Rosen, the predicate felonies are both necessary and sufficient for imposition of the authorized sentence for recidivism; that is why we pointedly called the predicate felonies the sole' determinant (96 NY2d at 335). By this unequivocal statement, we mean, and confirm today, that Criminal Procedure Law Section 400.20, by authorizing a hearing on facts related to the defendant's history and character, does not grant defendants a legal entitlement to have those facts receive controlling weight in influencing the court's opinion. The statutory language requiring the sentencing court to consider the specified factors and to articulate the reason for the chosen sentence grants defendants a right to an airing and an explanation, not a right."(5 NY3d., at 67-8)

The Judge closed the opinion by answering the Court's critics on the federal bench,

declaring;

"A number of federal trial courts have awarded (or have recommended awarding) writs of habeas corpus to state prisoners under a different view of our statutes. These courts believed that our statutes would not permit the imposition of a recidivist sentence until the trial justice found facts about the defendant's history and character beyond the prior convictions. These courts might be correct, if their interpretation of our statutes were correct. As we explained in Rosen, however, no additional factfinding beyond the fact of the two prior felony convictions is required under Penal Law Section 70.10 or under Criminal Procedure Law Section 400.20. If, for example, a defendant had an especially long and disturbing history of criminal convictions, a persistent felony offender sentence might well be within the trial justice's discretion even with no further factual findings. Once the defendant is adjudicated a persistent felony offender, the requirement that the sentencing justice reach an opinion as to the defendant's history and character is merely another way of saying the court should exercise its discretion." (infra, at 70)

Undaunted by the Second Circuit's reversal in Brown v. Greiner, supra , and the Court of [*11]Appeals reaffirmation of Rosen in Rivera, Judge Gleeson again held the New York discretionary persistent felony offender sentencing scheme unconstitutional in Portlain v. Graham,__F. Supp.2d.__,(March 22, 2007). After recounting the proceedings in the New York State Court and the provisions of the sentencing scheme, and the Rosen and Brown decisions, Judge Gleeson turned his attention to the Rivera decision. Addressing the holding in Rivera and the State's view of it, he declared;

"After the Supreme Court decided Blakely and Booker (in June 2004 and January 2005, respectively), the New York Court of Appeals revisited Section 70.10 in People v. Rivera, 5 NY3d 61, 800 NYS2d 51, 833 NE2d 194 (2005). Specifically, the defendant in Rivera asked the court to overrule Rosen in light of the intervening Supreme Court precedent. The New York Court of Appeals declined to do so. 5 NY3d at 63, 800 NYS2d 51, 833 NE2d 194.

In opposition to Portlain's petition, respondent contends that Rivera did nothing more than reaffirm Rosen. See resp. Mem. 22 ( The decision of the New York Court of Appeals in Rivera merely reaffirmed what the New York Court of Appeals had stated four years earlier in People v. Rosen.'). If that were so, it might end the matter as discussed above. Rosen's (and Brown and Geiner's ) effort to justify certain types of judicial factfindings in the sentencing phase on the ground that they fall within the traditional role' of judges, see Rosen, 96 NY2d 333, 728 NYS2d 407, 752 NE2d 844, Brown, 409 F. 3d at 534, may have been reasonable error prior to Blakely but it clearly does not survive that case.

But I see more in Rivera than respondent sees. Although it certainly reaffirmed Rosen (rather than overruling it), Rivera appears to add to it. Edified by Ring, Blakely and Booker, which all came after Rosen, the New York Court of Appeals in Rivera did not merely rely on Rosen's analysis, it refined and added to that analysis in an effort to accommodate the intervening precedent. Like several other state high courts, the Court of Appeals tried gamely to retrofit a sentencing statute enacted decades ago into the rapidly developing Sixth Amendment doctrine."(__F. Supp. 2d__at p.12.)

He further conducted a detailed analysis of Rivera in which he observed;

"The most important aspect of Rivera is that, despite its insistence that no factfindings (other than the fact of prior convictions ) are necessary to make Section 70.10's enhanced sentence possible, it leaves all of Sections 70.10 and 400.20 intact." (id., at 15)

Addressing this perceived deficiency, Gleeson wrote;

Rivera could have excised the factfinding requirements of section 400.20 (9) (just as Booker excised 18 U.S.C. Section 3553 (b)(1), and if it had, Section 70.10's enhanced sentence might have well become authorized without the necessity of judicial factfindings. Instead, the factfindings are still mandated by statute, and Rivera contains two rationales for its conclusion that they do not offend the Apprendi principle." (ibid., at 16) [*12]

Gleeson said the first rationale was based upon the reasoning that the factfinding was essential for "interest of justice" appellate review, citing language from Rivera. Addressing this contention he wrote;

"But the Apprendi principle as discussed above, is one of effect, not form. If, as remains the case in New York even after Rivera, a judge's authority to impose an enhanced sentence arises only after he or she makes one or more findings of fact, the jury trial right is violated. The Supreme Court's decision in Cunningham demonstrates what was already established by Apprendi and Blakely, namely that judicial factfindings cannot be rescued from Sixth Amendment scrutiny by characterizing them as grist for appellate review." (supra .)

After some further discussion, he dismissed this rationale with the observation;

" It is comforting, but beside the point' that New York's system allows sentence reductions on appeal in the interest of justice. Id. The point is that New York continues to require that factfindings be made before the enhanced sentence is imposed." (Id.)

Turning to the second rationale advanced in Rivera, that the factfinding done by the New York courts concern the defendant's history and character holistically rather than the facts peculiar to the case, Gleeson also rejected, noting;

"That dichotomy, as discussed above, cannot be squared with the Apprendi rule. The rule says that any fact other than a prior conviction not other than an offender characteristic- that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. No matter how distant the facts at issue may be from the elements of the offense or their functional equivalent' and no matter how holistic' or amorphous' the inquiry may be, if the sentencing court's authority to impose a persistent felony offender sentence is conditioned on factfindings that must be made by the court, such sentence cannot withstand the Sixth Amendment scrutiny."(ibid., p.17)

Gleeson went on to acknowledge that deference is owed to the New York Court of Appeals in the interpretation of its own statutes, however, citing Wisconsin v. Mitchell,^[FN15] he declared;

"Once any ambiguities as to the meaning of Section 70.10 are resolved by the New York court, a federal court must reach its own judgment as to the operative effect...The unambiguous text of Section 400.20 (9) still commands the sentencing courts to make findings of fact before they may impose an enhanced sentence under Section 70.10. Although Rivera casts those factfindings as essential to appellate review rather than the imposition of sentence, it nevertheless leaves them as a mandatory' part of the statutory scheme. 3N.Y. 3d at 69, 781 NYS2d 488, 814 N.E. 2d795. That feature of the scheme compels my conclusion here.

Put another way, I defer to the Court of Appeals conclusion with respect to what Section 70.10 means but I do not defer to its determination that [i]n practical terms, the legislative command' [*13]that findings of fact be made does not violate the jury trial right...The Court of Appeals analysis, i.e. that the statute merely aims to make explicit what sentencing courts have always done' Rivera 3 NY3d at 57, 781 NYS2d 482, 814 NE2d 789, and thus does not have unconstitutional effects, does not preempt my independent obligation to assess the constitutionality of the statute as the court itself construed it."(infra., at 18)

The Judge made two observations about how, in his view, New York could salvage its persistent felony offender scheme. Either it could subject all persons convicted of a felony, who have two prior nonviolent felony convictions, to the possibility of life imprisonment; or it could submit the issue of the Defendant's history and character and the need for extended incarceration and supervision to a jury.^[FN16] Absent one of those alternatives, he believed that Portalain's sentence was unconstitutionally imposed, and that he was compelled to grant the writ.

Notwithstanding Judge Gleeson's thoughtful and thorough analysis of Section 70.10 of the Penal Law and Section 400.20 of the Criminal Procedure Law in Brown v. Greiner, 258 F. Supp 2d 68 (2003) and Portalain v. Graham, __F. Supp.__(2007), both the New York Court of Appeals and the United States Court of Appeals have spoken in Rosen, Rivera,^[FN17] and Brown v. Greiner, 409 F. 3d 523 (2005) and have put their imprimatur on New York's discretionary persistent felony offender scheme in the wake of Apprendi and its progeny. That judgment is binding on this Court.

The Defendant's Predicate Felony Convictions

During the hearing conducted on April 4, 2007, the Defendant challenged the sufficiency of the plea allocutions underlying the predicate convictions being considered by the Court pursuant to Section 70.10(1) of the Penal Law.^[FN18] As the Court advised both counsel at that time, it would obtain copies of the two plea allocutions, and review the sufficiency of each. The Court obtained the minutes of the defendant's plea to Driving While Intoxicated as a felony ^[FN19] entered in Madison County Court on October 15, 1991, before the Hon. William F. O'Brien III, for which a sentence of one and one-third to four years imprisonment was imposed.^[FN20] The Court, additionally, obtained a copy of the defendant's plea allocution in this Court on March 23, 1999, in which the Defendant pled guilty to Driving While Intoxicated, as a D felony,^[FN21] for which a [*14]sentence of two to six years imprisonment was imposed.^[FN22] A review of each of the plea allocutions reveals that the Defendant was advised of his constitutional right to a trial by jury, that the prosecution has the burden of proving him guilty of each and every element of the crime beyond a reasonable doubt, that his attorney would have the right to confront, cross-examine and question witnesses on his behalf, that he would have the right to call any witnesses and produce whatever evidence he chose in defense of the charges, and although he could not be compelled to do so, would have the right to testify on his own behalf. He was further advised that if he gave up those rights and entered a plea of guilty to those charges, it was the same as if the court or a jury found him guilty of those charges. In each of those proceedings, the Defendant stated that he understood those rights and wished to enter the respective guilty pleas.

In the proceedings before Judge O'Brien in Madison County Court on October 15, 1991, the Defendant admitted that he was driving while in an intoxicated condition on September 3, 1989 on Quaker Basin Road in the Town of DeRuyter, after having consumed five beers.^[FN23] He additionally admitted to a special information charging that he had been convicted of Driving While Intoxicated in Onondaga County Court on November 2, 1987.^[FN24]

Likewise, during the proceedings in this Court on March 23, 1999, the Defendant, after having been advised of all of his constitutional rights, admitted to driving while in an intoxicated condition on October 6, 1998 in the City of Syracuse, after consuming beer.^[FN25] Additionally, he admitted to having been convicted of Driving While Intoxicated, before the Court, on August 28, 1997.^[FN26]

Clearly, both plea allocutions apprised the Defendant of all of the constitutional rights he would enjoy should he proceed to trial, thereby fulfilling the requirement which concerned Justice Stevens in Apprendi ^[FN27], in addition to supplying a full factual predicate for the entry of a felony plea. Accordingly, the Court finds that the requirement of Section 70.10 (1) of the Penal Law have been met.

The History and Character of the Defendant

As discussed above, a second prong of Section 70.10 of the Penal Law must be addressed before a Class A-1 felony sentence may be imposed. The Court must form an "... opinion of the history and character of the defendant and the nature and circumstances of his criminal conduct" before it can find "that extended incarceration and life-time supervision will best serve the public [*15]interest."^[FN28] This particular analysis has been the most controversial issue in the post-Apprendi world.

In Apprendi, Ring, Brown, Blakely, Booker, Rosen, Rivera, and Portalain, the sentencing courts were required to make factual findings, other than the elements of the underlying conviction or prior convictions, in order to enhance the sentence beyond the statutory maximum. In all of these cases, it led the sentencing courts to consider some conduct that was anti-social at best. This additional step, as previously discussed, led to the sentencing schemes utilized in Apprendi, Ring, and Blakely being invalidated by the Supreme Court. It likewise led to Judge Gleeson granting writs of Habeas Corpus in Brown and Portalain, and inspired dissents by Judges Kaye and Ciparick in Rivera.

Notwithstanding the current vitality of Section 70.10 of the Penal Law as expressed in Rosen, Rivera and Brown, this Court, in order to avoid any apparent Apprendi infirmity, will only consider the defendant's prior convictions and adjudications in formulating an opinion concerning the history and character of the Defendant and the nature and circumstances of his criminal conduct and the need for extended incarceration and life-time supervision as required by Section 70.10 (2) of the Penal Law. In order to do so, a review of the Defendant's history of criminal convictions and adjudications is required.

On March 10, 1983, the Defendant pled guilty to Manslaughter in the Second Degree in violation of Section 125.15(1) of the Penal Law and Driving While Intoxicated in violation of Section 1192(3) of the Vehicle and Traffic Law in this Court as a result of an automobile fatality on September 28, 1982 in which David Goodspeed was the killed. He was adjudicated a Youthful Offender ^[FN29] pursuant to Section720.30of the Criminal Procedure Law and sentenced to one year in the Onondaga County Correctional Facility.

On December 14, 1984, the Defendant was convicted of Petit Larceny in violation of Section 155.00 of the Penal Law following a trial in the Town of Geddes Court and sentenced to one year in the Onondaga County Correctional Facility.

On June 17, 1987, the Defendant pled guilty to Attempted Burglary in the Third Degree in violation of Section 110.00 and 140.20 of the Penal Law in this Court and was sentenced to one year in the Onondaga County Correctional Facility.

On November 2, 1987, the Defendant pled guilty in this Court to Driving While Intoxicated as a Felony in violation of Section 1192 (3) of the Vehicle and Traffic Law and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree in violation of Section 511(3) of the Vehicle and Traffic Law and was sentenced to one year in the Onondaga County Correctional Facility.

On December 9, 1991, the Defendant pled guilty to Driving While Intoxicated as a [*16]Felony in violation of Section 1192(3) of the Vehicle and Traffic Law and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree in violation of Section 511(3) of the Vehicle and Traffic Law in Madison County Court and was sentenced to an indeterminate sentence of imprisonment of one and one-third to four years in the New York State Correctional System. This conviction constitutes one of the Defendant's predicate felony convictions pursuant to Section 70.10(1) of the Penal Law. The constitutionality of the conviction has been discussed above.

On October 15, 1997, the Defendant pled guilty to Driving While Intoxicated as a Felony in violation of Section 1192(3) of the Vehicle and Traffic Law and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree in violation of Section 511(3) of the Vehicle and Traffic Law in this Court and was sentenced to one year in the Onondaga County Correctional Facility.^[FN30]

On March 23, 1999, the Defendant pled guilty to Driving While Intoxicated as a D Felony in violation of Section 1192(3) of the Vehicle and Traffic Law and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree in violation of Section 511(3) of the Vehicle and Traffic Law, On September 13, 1999, he was sentenced to an indeterminate sentence of three to six years in the New York State Correctional System. This conviction constitutes the Defendant's second predicate felony conviction pursuant to Section 70.10(1) of the Penal Law. The constitutionality of this conviction was discussed above.

As noted at the outset, the Defendant was found guilty by a jury in this Court of Driving While Intoxicated in violation of Section 1192 (3) of the Vehicle and Traffic Law, Driving While Ability is Impaired by Drugs in violation of Section 1192(4) of the Vehicle and Traffic Law, and various lesser offenses. Both the Driving While Intoxicated and Driving While Ability is Impaired by Drugs are class D felonies due to the Defendant's prior convictions.

In sum, the Defendant has five prior felony convictions, four of which are felony convictions for Driving While Intoxicated. These convictions follow the Defendant's Youthful Offender adjudication which replaced his convictions for Manslaughter in the Second Degree and Driving While Intoxicated from the Goodspeed fatality in 1982. There is little doubt that the Defendant has a considerable history of criminal behavior which spans almost a quarter of a century. Moreover, the seriousness of this history and conduct is magnified when one considers the frequency of these convictions arrayed against the amount of time the Defendant has been imprisoned during this period. The Defendant's history of driving while intoxicated and driving while his ability is impaired by drugs over the past twenty-five years, in the wake of a similar episode in which David Goodspeed was killed, manifests a lethal disregard for the safety of others.

That the defendant has arrived at this point in his lengthy journey through the criminal justice system should come as a surprise to no one, least of all him. During the Sentencing Proceedings in this Court on September 13, 1999, following his last conviction, the Defendant was warned that he could be subjected to sentencing pursuant to Section 70.10 of the Penal Law [*17]if he were convicted of another such charge in the future.^[FN31] Notwithstanding that admonition, the Defendant was charged with the offenses for which he was convicted and is subject to sentencing in these proceedings a mere forty-four days after being released from parole supervision. Clearly, if the public is to be protected, the Court has no alternative but to impose a sentence of extended incarceration and life-time supervision pursuant to Section 70.10 of the Penal Law.^[FN32]

For all of the foregoing reasons the Defendant will be sentenced pursuant to Section 70.10 of the Penal Law in the within action.

The foregoing constitute the Decision and Order of the Court.

DATED:May 15, 2007

Syracuse, New York

E N T E R :

_____________________________________

HONORABLE JOSEPH E. FAHEY, J.C.C.