Wednesday, March 31, 2010

Second Circuit: N.Y. Persistent Felony Offender Law Unconstitutional

In a major ruling today, the Second Circuit has determined in Besser v. Walsh that New York's persistent felony offender law, N.Y. Penal Law § 70.10, violates a defendant's constitutional right to trial by jury by permitting a judge, rather than a jury, to make critical fact findings in violation of Blakely v. Washington, 542 U.S. 296 (2004). The decision can be found here.

Constitutional challenges to the statute have been repeatedly rejected by the New York State courts, including most recently by the New York Court of Appeals in People v. Quinones, 12 N.Y.3d 116 (2009). The Second Circuit ruling is a stunning rebuke of the state courts in a matter of critical importance to the state's criminal justice system. Because of the importance of the case to the State of New York, I anticipate that it will either seek en banc review in the Second Circuit, or file a certiorari petition in the Supreme Court.

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