Brief for Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers Supporting Petitioner (On Petition for a Writ of Certiorari to the New York Court of Appeals).
Argument: New York’s persistent felony offender sentencing scheme violates Apprendi. Apprendi applies broadly to a host of sentencing schemes, as multiple states have recognized. The statute’s plain language and history confirm that it mandates impermissible judicial factfinding based on a preponderance of the evidence. Prior felony conviction are not the “sole determinant” of a persistent non-violent felony offender sentence. Sentencing judges engage in the impermissible factfinding in practice. The New York Court of Appeals’ reasoning does not square with Apprendi and its progeny.