Federal Judge Faults State Sentencing

By Tom Perrotta
New York Law Journal
March 28, 2007


For the second time, a federal judge in Brooklyn has declared New York's persistent felony offender statute unconstitutional.

The decision by Eastern District Judge John Gleeson comes four years after he first ruled against N.Y. Penal Law §70.10, which requires judges, rather than juries, to find facts before imposing harsher prison sentences than those authorized by statute.

While the judge's initial ruling against the New York statute, in Brown v. Greiner, 258 F. Supp.2d 68, was reversed by the U.S. Court of Appeals for the Second Circuit, Judge Gleeson said last week in Portalatin v. Graham, 06-CV-5002, that subsequent rulings by the U.S. Supreme Court now put the law in "irreconcilable conflict with the Sixth Amendment."

He noted that because of the timing of the case, the circuit did not consider Blakely v. Washington, 542 U.S. 296 (2004), when it reversed his ruling in Brown (409 F.3d 523, 2005).

Judge Gleeson also rejected a 2005 New York Court of Appeals ruling, People v. Rivera, 5 N.Y.3d 61, in which a divided Court took great pains to uphold the statute despite U.S. Supreme Court case law.

In Rivera, the Court of Appeals sustained the persistent felony offender statute by splitting it in two.

The first part of the law, the majority said, made defendants eligible for an indeterminate life term as long as they had two or more prior convictions.

The second part asked judges to use their discretion in deciding whether to impose the sentence - after reaching factual conclusions about a defendant's history and character. But those facts were mostly necessary to aid appeals courts in reviewing cases, the Court said.

Judge Gleeson said the Court of Appeals ruling elevated "form over substance."

"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," Judge Gleeson wrote.

But he said the statute could not comply with the Sixth Amendment as long as it required judges to make findings of fact before issuing an enhanced sentence.

"It does not matter what type of factfinding a judge makes," Judge Gleeson said. "If a finding is 'legally essential' [quoting Blakely] to the enhanced sentence, the Sixth Amendment is violated unless that fact is either admitted by the defendant or found by a jury beyond a reasonable doubt."

The defendant in Portalatin, Carlos Portalatin, was convicted of committing a carjacking in Williamsburg, Brooklyn, in July 2002. He had previous convictions for attempted burglary and attempted criminal sale of a controlled substance.

At Mr. Portalatin's sentencing in April 2003, the state judge made several factual findings, including that Mr. Portalatin had failed to take advantage of drug treatment opportunities; was inclined to "prey upon others"; and could not control his problems.

Mr. Portalatin received a sentence of 18 years to life in prison. In his ruling last week, Judge Gleeson granted a writ of habeas corpus and ordered the state Supreme Court to vacate the sentence and re-sentence the defendant.

Jerry Schmetterer, a spokesman for the Brooklyn District Attorney's Office, said the office would seek an appeal.

Joshua M. Levine of Appellate Advocates, which represented Mr. Portalatin, said Judge Gleeson's ruling is another sign that the persistent felony offender statute is need of legislative repair.

"If the Second Circuit ultimately rules in our favor, I would think that the Legislature would take action at that point," Mr. Levine said.

The circuit might effectively decide Mr. Portalatin's case when it considers a similar case from the Southern District, Phillips v. Artus (WL 1867386).

In Phillips, Judge Paul A. Crotty said the U.S. Supreme Court's ruling in Blakely did not change the legal landscape enough to warrant a departure from the circuit's ruling in Brown.

Assistant District Attorney Ann Bordley appeared for the Brooklyn District Attorney's Office.

- Tom Perrotta can be reached at tperrotta@alm.com.