Tuesday, October 19, 2004
Blakely and Consecutive Sentences in New York
One of the things that has kept me busy is a pro bono project that I have started as part of Columbia's pro bono program. What am I working on? A Blakely project, of course. I get many emails and letters from prisoners and their family members asking for my help on various Blakely appeals. Unfortunately, I have to turn all of those requests down because I'm not an attorney. Right now, I'm just a guy with a lot of debt and a blog. I've taken-on this pro bono project, which is supervised by a real live attorney, as a way to give back to the community.
Here's what I'm working on, and if anyone out there can offer some help, I'd be very appreciative (especially from jurisdictions outside of NY). This case only concerns New York state law, there are no federal charges. The client was indicted for and found guilty of, among other things, manslaughter in the first degree (NY Penal Law § 125.20 (1)) and criminal possession of a weapon in the second degree (NY Penal Law § 265.03). The indictment did not allege against whom the defendant intended to use the weapon for purposes of the possession charge, which is a distinct crime from manslaughter and relevant for purposes of sentencing. The judge, however, sentenced the defendant for manslaughter and criminal possession of a weapon.
Here's where the specifics of New York state law come in.
The judge imposed consecutive sentences on the defendant despite N.Y. Penal Law § 70.25(2) which states:
This relevant because if the indictment alleged that the defendant intened to use the weapon which he criminally possessed against the same person who he was charged with manslaughter, § 70.25(2) would likely bar a consecutive sentence.
The question here appears to be: could the judge independently find that that the defendant possessed the weapon with the intent of using against someone not in the indictment for the purposes of sentencing him to a consecutive sentence? Prior to the Blakely ruling, the state argued that the sentence did not go beyond the statutory maximum. That Apprendi-based understanding of the law is clearly undercut by Blakely, but the Blakely issue here is not as clear cut as it is in a number of cases. Was the indictment not sufficient enough to comply with Blakely?
Assuming that Blakely doesn't apply, there is an argument that criminal possession of a weapon is an offense that should be sentenced concurrently with manslaughter under § 70.25(2). My question here is, does the Blakely ruling's like obliteration (maybe "obliterate" is a strong word) of the sentencing factor/element distinction undermine NY precedent which states that possession of a weapon distinct for § 70.25(2) purposes from manslaughter?
I know that there have been challenges in California to the state's consecutive sentences law. Those cases may be inapposite because the defendant in this case is not challenging the constitutionality of § 70.25(2). He is only challenging the judicial finding of fact not included in the indictment. On the other hand, I would still like to hear from anyone who has any thoughts or experience in mounting challenges to consecutive sentencing statutes from all jurisdictions, including California.
I would appreciate it if any one out there was willing to discuss the concurrent/consecutive sentencing aspect of this case, or offer any other suggestions for research outside of New York.
Update: I've added some detail and taken some things out of this post since I first put it up.
"Restitution Proceedings In Federal Sentencing" - An Online Seminar
The program will run approximately 45 minutes to one hour. It will be held in the ONLINE SEMINARS section of the AFDA web site, which operates like a chat room but with moderator controls. The presentation format will be audio accompanied by the sequential placement of slides in the chat room screen, similar to a powerpoint presentation.
The program will present a five-step analysis in handling restitution determinations. As courts have recognized that restitution is a statutory obligation and thus not based specifically on the sentencing guidelines, this topic remains relevant in our handling of fraud / theft during this remarkable period of uncertainty surrounding the guidelines, as we await the Supreme Court's ruling in Booker / Fanfan.
For more details, please visit the AFDA web site.