Brief filed: 07/28/2017
State v. Garvin; State v. Wright
New York Court of Appeals; Case No. APL-2015-00321 & APL-2016-00078
Decisions below 130 A.D. 3d 644 (2nd Dep’t. 2015) and 134 A.D.3d 1059 (2nd Dept. 2015).
Under Penal Law § 70.10 and CPL § 400.20, a court may sentence a convicted felon with prior felony convictions as a “Persistent Felony Offender” only upon findings made by a judge under a preponderance of the evidence standard. New York’s sentencing scheme under the statute and the CPL is functionally the same as the statutory scheme found unconstitutional by the United States Supreme Court in Hurst v. Florida.
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Mark G. Matuschak and Tiffany E. Payne, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; Lindsay A. Lewis, NACDL, New York, NY.