People v. Rosen, 96 N.Y.2d 329 (2001)

A discretionary persistent felony offender sentence enhancement, based on prior convictions, does not violate a defendant’s right to a jury trial under Apprendi v. New Jersey.

Summary

Rosen pleaded guilty to first-degree sexual abuse. Based on a pre-sentence report, the prosecutor sought to have Rosen sentenced as a persistent felony offender, which would increase his sentence beyond the initially agreed-upon maximum. The trial court vacated Rosen’s plea when he insisted on specific performance of the plea agreement but also refused to choose between accepting an enhanced sentence and withdrawing his plea. Rosen was convicted at trial and sentenced as a persistent felony offender. The New York Court of Appeals affirmed, holding that the persistent felony offender statutes did not violate Rosen’s right to a jury trial under Apprendi because the enhanced sentencing was predicated on prior convictions, an explicit exception to the Apprendi rule. Further, the court found any error in vacating the plea unpreserved.

Facts

Rosen was observed fondling a four-year-old girl on the subway. He pleaded guilty to first-degree sexual abuse. A pre-sentence report and psychological evaluation led the prosecutor to seek a persistent felony offender sentencing, which would authorize a sentence exceeding the usual maximum of seven years. The trial court gave Rosen the option to withdraw his plea. Defense counsel insisted on specific performance of the plea agreement. The trial court vacated the plea sua sponte and the matter proceeded to trial.

Procedural History

The trial court convicted Rosen of first-degree sexual abuse and endangering the welfare of a child. Following a hearing, the trial court adjudicated Rosen a persistent felony offender and sentenced him to 25 years to life. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the discretionary persistent felony offender sentence enhancement provisions violate a defendant’s right to trial by jury under Apprendi v. New Jersey.

2. Whether application of the discretionary persistent felony offender statutes violated Rosen’s state right to a charge-specific indictment.

3. Whether the trial court erred in refusing to declare a mistrial after the arresting officer made specific reference to precluded testimony.

4. Whether the trial court lacked statutory authority to vacate Rosen’s plea.

Holding

1. No, because the enhanced sentencing was predicated on Rosen’s prior felony convictions, an explicit exception to the general rule in Apprendi.

2. No, because facts regarding recidivism increasing the maximum penalty need not be charged in the indictment.

3. No, because the refusal to declare a mistrial did not constitute an abuse of discretion.

4. The issue is unpreserved and because such an error would not constitute a mode of proceedings error, defendant’s failure to preserve precludes appellate review.

Court’s Reasoning

The Court of Appeals relied heavily on the Supreme Court’s decision in Apprendi v. New Jersey, which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Court reasoned that because Rosen’s enhanced sentence was based on his prior felony convictions, it fell squarely within the exception articulated in Apprendi. The court stated, “It is clear from the foregoing 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.”

The court emphasized that after the prior felony convictions are established, the sentencing court is only fulfilling its traditional role in determining an appropriate sentence within the permissible statutory range, “giving due consideration to agreed-upon factors.” The Court also rejected Rosen’s argument that the indictment was defective because it did not contain a discretionary persistent felony offender charge, citing Jones v. United States, which held that “facts regarding ‘recidivism increasing the maximum penalty need not be so charged.’”

Regarding the mistrial, the Court found no abuse of discretion in the trial court’s refusal to grant one, especially given the curative instruction provided to the jury. Finally, the Court held that Rosen’s challenge to the trial court’s vacatur of his plea was unpreserved and did not constitute a mode of proceedings error, thus precluding appellate review.