Tuesday, October 19, 2004

Blakely and Consecutive Sentences in New York

Unfortunately, I've been away from the blog for quite some time. My mind has been at ease, however, because I know you are all in good hands as long as Sentencing Law and Policy is out there. Let's face it, in the world of Blakely blogs, Sentencing Law and Policy is the New York Times of blogs, whereas the Blakely Blog has more of a New York Post feel. That's ok, I like it that way.

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:

When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.

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.

My initial instinct is that you're in trouble here.

The consecutive sentences in Man 1 and CPW 3 cases are sadly routine, and I'm not even sure you're right about a CPW2 conviction. Certainly a Blakely-style ruling in your favor on the issue would be a great boon for a large number of people serving these sentences, so I'm happy to talk to you about it further if you like--I was the Trial Chief of The Bronx Defenders until recently and know a bit about sentencing.

You can e-mail me at Questions@DavidFeige.com

Good luck, please excuse my skepticism and let me know how it's coming along.
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