PEOPLE v. LEON, 10 N.Y.3d 122 (2008)

884 N.E.2d 1037, 855 N.Y.S.2d 38

Court of Appeals of the State of New York.Argued January 3, 2008.
decided February 19, 2008.

APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered January 25, 2007. The Appellate Division affirmed a judgment of the Supreme Court, New York County (Marcy L. Kahn, J.), which had convicted defendant, upon a jury verdict, of sexual abuse in the first degree (three counts) and endangering the welfare of a child, and sentenced defendant, as a persistent violent felony offender, to an aggregate term of 15 years to life.

People v Leon, 36 AD3d 538, affirmed.

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Center for Appellate Litigation, New York City (Jonathan M. Kirshbaum and Robert S. Dean of counsel), for appellant. I. The rule of admissibility established in Crawford v Washington (541 US 36
[2004]), applies at a persistent violent felony offender hearing and bars the People’s use of a testimonial fingerprint affidavit since (1) CPL 400.15 (7) (a) states that identity can only be established at the hearing by “evidence admissible under the rules applicable to a trial” and Crawford
addresses the admissibility of evidence at trial, and (2) relevant Supreme Court precedent has extended the right to confront to recidivist hearings. (Specht v Patterson, 386 US 605; Oyler v Boles, 368 US 448; Chandler v Fretag, 348 US 3; People v Pacer, 6 NY3d 504 Eaton v New York City Conciliation Appeals Bd., 56 NY2d 340; People v Williams, 30 AD3d 980, 7 NY3d 852; Mungo v Duncan, 393 F3d 327, 544 US 1002 People v Rosello, 97 Misc 2d 963; United States v Moore, 208 F3d 411; Almendarez-Torres v United States, 523 US 224.) II. The court’s adjudication and sentence pursuant to New York’s persistent violent felony offender statutes was unconstitutional under Apprendi v New

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Jersey (530 US 466 [2000]), because, in making a factual finding that appellant was the one who committed the prior crimes, the court made factual findings beyond the jury’s verdict that were outside the fact of a prior conviction. (Almendarez-Torres v United States, 523 US 224 Blakely v Washington, 542 US 296; Shepard v United States, 544 US 13; Taylor v United States, 495 US 575; People v Rivera, 5 NY3d 61, 546 US 984.)

Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer of counsel), for respondent. I. Defendant was not entitled to cross-examine a fingerprint examiner at the sentencing hearing. (Crawford v Washington, 541 US 36 Williams v Oklahoma, 358 US 576; People v Williams, 298 NY 803, 337 US 241; United States v Martinez, 413 F3d 239, 546 US 1117; People v Walker, 81 NY2d 661; People ex rel. Knoblauch v Warden, 216 NY 154; People v Graham, 55 NY2d 144 People v Williams, 30 AD3d 980; Chandler v Fretag, 348 US 3; Specht v Patterson, 386 US 605.) II. The Sixth Amendment did not entitle defendant to a jury trial on whether he is the “Jose Leon” convicted of violent felonies in the past. (Apprendi v New Jersey, 530 US 466; People v Boyer, 6 NY3d 427; People v Rivera, 5 NY3d 61, 546 US 984; People v Rosen, 96 NY2d 329, 534 US 899; United States v Johnson, 440 F3d 832; United States v Barrerro, 425 F3d 154; United States v Morris, 293 F3d 1010, 537 US 987; United States v Kempis-Bonola, 287 F3d 699, 537 US 914 United States v Santiago, 268 F3d 151; Shepard v United States, 544 US 13.)

Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH and PIGOTT.

OPINION OF THE COURT
JONES, J.

Defendant Jose Leon’s conviction arises out of the sexual abuse of a 13 year old. Supreme Court subsequently conducted a hearing and adjudicated defendant a persistent violent felony offender[1] upon a finding that defendant had previously been convicted of two violent felonies — both first-degree manslaughter — in 1976, and in 1983. On this appeal, defendant presses two arguments concerning his sentence.

First, defendant contends that Crawford v Washington
(541 US 36 [2004]) applies at a predicate sentencing hearing, both as a matter of his Sixth Amendment right to be confronted with the witnesses against him, and by operation of CPL 400.15
(7)

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(a).[2] In particular, defendant argues that the hearing court violated his right to confront the author of a report certifying that he had compared two fingerprint cards of a “Jose Leon” with two prior convictions (for 1976 and 1983), bearing the identical New York State identification number, and that, in his opinion, the two “fingerprint impressions are those of the same individual.”[3] Defendant admitted that he was the same “Jose Leon” identified in the 1976, but not the 1983, conviction. Second, defendant argues that, in light of his challenge to being the same person identified in the 1983 conviction, the hearing court necessarily made a finding of fact — the fact of his identity — beyond the sole permissible fact of prior convictions in violation o Apprendi v New Jersey (530 US 466 [2000]).

The Appellate Division rejected both arguments, concluding that defendant was properly adjudicated a persistent violent felony offender “on the basis of admissible evidence (see CPL 60.60 [2]; 400.15 [7] [a]; 400.16 [2])” (36 AD3d 538 [2007]) and that his constitutional arguments were meritless. We now affirm.

Sentencing proceedings are not trial prosecutions.[4] Thus, we read Crawford, as do the Circuit Courts of Appeals to have considered the question, as addressing “[b]y its own terms” testimonial hearsay at trial (United States v Luciano, 414 F3d 174, 179 [1st Cir 2005] [collecting cases]; see also United States v Martinez, 413 F3d 239, 243 n 5 [2d Cir 2005], cert denied 546 US 1117
[2006] [collecting cases]).

Similarly, we reject defendant’s contention that CPL 400.15 (7) (a) incorporates into his sentencing hearing the trial

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right of confrontation. Before Crawford, there was little doubt that affidavits based on fingerprint comparisons were admissible at predicate sentencing hearings (see
CPL 60.60 [2]; CPLR 4520).[5] Section 400.15 (7) (a)’s requirement that evidence be subject to “the rules applicable to a trial of the issue of guilt” dates to 1967 in section 470-a of the former Code of Criminal Procedure.[6] To agree with defendant’s broad construction of section 400.15 (7) (a) is to presume too much of the Legislature’s intent, given the timing of the enactment of section 60.60 (2). Testimonial hearsay under section 60.60 (2) continued to be admitted after the passage of section 400.15, both at trial and at predicate felony hearings (although Crawford now places new restrictions at trial). Because, in our view, Crawford
does not apply at sentencing proceedings, we decline to construe section 400.15 along with other hearsay statutes, which have always operated in tandem, in a way that yields unworkable results (see Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186, 195 [1988]).

Finally, we have considered defendant’s Apprendi
challenge and find it also to be without merit (see People v Rivera, 5 NY3d 61 [2005]; see also United States v Johnson, 440 F3d 832, 848 [6th Cir 2006] [“Common sense dictates that these facts are `so basic as to be implicit in the fact of a prior conviction'”]; United States v Thompson, 421 F3d 278, 284 n 4 [4th Cir 2005] [same] United States v Santiago, 268 F3d 151, 156 [2d Cir 2001] [a sentencing judge’s ability to determine whether a defendant has a prior conviction extends to “the `who, what, when, and where’ of a prior conviction”]).

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Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

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