Argued June 1, 2017; decided June 29, 2017

People v Prindle, 129 AD3d 1506, affirmed.

"This appeal presents another Apprendi challenge to New York's discretionary persistent felony offender sentencing scheme. The primary issue before us is whether, in light of [Alleyne v United States (570 US —, 133 S Ct 2151 [2013])], this sentencing scheme violates Apprendi [v New Jersey (530 US 466 [2000])] and defendant's due process and Sixth Amendment rights. We again uphold the constitutionality [*2]of New{**29 NY3d at 466} York's discretionary persistent felony offender sentencing scheme and further hold that defendant's constitutional rights were not violated" (People v Quinones, 12 NY3d 116, 119 [2009]).

The Sixth and Fourteenth Amendments guarantee criminal defendants in state courts "the right to a speedy and public trial, by an impartial jury." To satisfy that right, the People must prove each element of a crime beyond a reasonable doubt. Among those elements is any fact—other than one admitted by the defendant or involving the mere fact of a prior felony conviction (Almendarez-Torres v United States, 523 US 224 [1998])—that has the effect of increasing the prescribed range of penalties to which a defendant is exposed (see Apprendi, 530 US at 489-490). For nearly two decades, the United States Supreme Court has applied the Apprendi rule in cases involving capital punishment (Hurst v Florida, 577 US —, 136 S Ct 616 [2016]; Ring v Arizona, 536 US 584 [2002]), broad judicial discretion to find aggravating factors (Cunningham v California, 549 US 270 [2007]; Blakely v Washington, 542 US 296 [2004]), the federal sentencing guidelines (United States v Booker, 543 US 220 [2005]), and mandatory minimum sentences (Alleyne, 570 US —, 133 S Ct 2151).

Each successive decision of the Supreme Court has brought renewed challenges to the constitutionality of New York's persistent felony offender statute. From the first of those challenges, we have held that the statute (Penal Law § 70.10 [1] [a]) falls within the exception provided by Almendarez-Torres, and thus outside the scope of the Apprendi rule, because it exposes defendants to an enhanced sentencing range based only on the existence of two prior felony convictions (People v Giles, 24 NY3d 1066 [2014]; People v Battles, 16 NY3d 54 [2010]; People v Quinones, 12 NY3d 116 [2009]; People v Rivera, 5 NY3d 61 [2005]; People v Rosen, 96 NY2d 329 [2001]).^[FN1] As we have consistently explained, the existence of those prior convictions—each the result of either a guilty plea or a jury verdict—is the "sole determinant of whether a defendant is subject {**29 NY3d at 467}to recidivist sentencing as a persistent felony offender" (Rivera, 5 NY3d at 66, citing Rosen, 96 NY2d at 335). Only after the existence of those prior convictions is established and the maximum permissible sentence raised does Supreme Court have "the discretion to choose the appropriate sentence within a sentencing range prescribed by statute" (Quinones, 12 NY3d at 129; see Penal Law § 70.10 [2]).^[FN2][*3]

"The court's opinion is, of course, subject to appellate review, as is any exercise of discretion. The Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident" and reduce it in the interest of justice to a sentence within the statutory range fixed by the legislature for the crime of conviction, without regard to the persistent felony offender enhancement (Rivera, 5 NY3d at 68-69). "In this way, the Appellate Division can and should mitigate inappropriately severe applications of the statute" (id.).

In other words, the statute mandates a two-part process: in step one, the court adjudicates the defendant a persistent felony offender if the necessary and sufficient fact of the two prior convictions is proved beyond a reasonable doubt, thereby exposing him to the sentencing range applicable to such offenders; in step two, it evaluates what sentence is warranted and sets forth an explanation of its opinion on that question for the record (see Penal Law § 70.10 [2]; Rivera, 5 NY3d at 68).

Although Rivera and several of our cases following it include dissents questioning the soundness of our construction of New York's persistent felony offender statute (Giles, 24 NY3d at 1073-1076 [Abdus-Salaam, J., concurring in part and dissenting in part]; Battles, 16 NY3d at 59-68 [Lippman, Ch. J., dissenting in part]; Rivera, 5 NY3d at 71-76 [Kaye, Ch. J., dissenting]; Rivera, 5 NY3d at 76-83 [Ciparick, J., dissenting]), that construction has withstood both Sixth Amendment{**29 NY3d at 468} scrutiny and the test of time.^[FN3] For the reasons elaborated in our prior cases and the principle of stare decisis, our construction withstands Mr. Prindle's suit as well.

In addition to asking us to discard our well-settled construction of the persistent felony offender statute established in Rosen, Rivera, Quinones, Battles, and Giles (a decision that would require us to strike down the statute as unconstitutional and hold the sentence at issue [*4]illegal), Mr. Prindle argues that the Supreme Court's recent extension of Apprendi to increases in the mandatory minimum of a sentencing range requires us to declare that the statute, even as construed in our prior case law, violates the Sixth Amendment. His argument is unavailing because the persistent felony offender statute never increases the mandatory minimum sentence to which a persistent felony offender is exposed. Instead, persistent felons are subject to the same mandatory minimum as non-recidivist offenders guilty of the same crime.

In Alleyne v United States, the Supreme Court applied Apprendi and remanded for resentencing the case of a defendant who was subjected to an increased, mandatory minimum term of imprisonment based on a judicial finding that he had brandished, rather than merely used or carried, a firearm in relation to a crime of violence (Alleyne, 570 US at —, 133 S Ct at 2155-2156; 18 USC § 924 [c] [1] [A]). Overruling Harris v United States (536 US 545 [2002]), which had limited Apprendi to cases increasing the maximum sentence, the Court held that "a fact increasing either end of the [sentencing] range produces a new penalty and constitutes an ingredient of the offense" that must be proved to a jury beyond a reasonable doubt (Alleyne, 570 US at —, 133 S Ct at 2160).

New York's persistent felony offender statute, however, does not increase the mandatory minimum sentence for defendants determined to be persistent felony offenders. After determining, on the sole basis of the predicate felonies, that a defendant is to be adjudicated a persistent felony offender, a sentencing{**29 NY3d at 469} court may choose to sentence that defendant to at least 15 years in prison but also retains "its discretion to hand down a sentence as if no recidivism finding existed" (Rivera, 5 NY3d at 68; Penal Law § 70.10 [2] [instructing judges that they may impose an A-I sentence]). Moreover, after a defendant has been "adjudicated as a persistent felony offender" during step one, "the People retain the burden to show that the defendant deserves the higher sentence" (Rivera, 5 NY3d at 68). Thus, even though Mr. Prindle is a persistent felony offender, the minimum sentence he could have received has never changed. Although a judge, in sentencing a persistent felony offender, is limited to sentences in a non-continuous range composed of both a lower register (the sentence authorized by Penal Law §§ 70.00, 70.02, 70.04, 70.06 or 70.80 [5] for the crime of which the defendant stands convicted) and an upper one (the sentence authorized by that section for a class A-I felony, or between 15 and 25 years to life), the floor of that expanded range remains—as the sentencing court in this case recognized—the floor faced by offenders who have not been adjudicated persistent felony offenders (see Portalatin v Graham, 624 F3d 69, 89 n 12 [2010]).^[FN4] [*5]

In attempting to apply Alleyne to the facts of this case, Mr. Prindle contends that judges sentencing defendants in accordance with the New York persistent felony offender statute are engaged in not a two- but a three-step process. In step one, the court relies on prior convictions to determine whether a defendant is a persistent felony offender; in step two, it relies on "the history and character of the defendant and the nature and{**29 NY3d at 470} circumstances of his [or her] criminal conduct" (Penal Law § 70.10 [2]) to form an opinion about whether that defendant should be sentenced as a non-recidivist or as a persistent felony offender; and, in step three, it relies on traditional sentencing factors to announce a sentence within whichever range was dictated by the results of step two. It is at the end of step two, on this view, that judicial fact-finding has impermissibly increased the minimum sentence to 15 years to life.

As we have repeatedly construed New York's persistent felony offender statute, it calls for sentencing courts to proceed in two steps, not three (see Rivera, 5 NY3d at 64 [explaining "the two-part nature of the proceeding"]). Mr. Prindle is attempting to create a Sixth Amendment violation where one does not exist by artificially cleaving step two into distinct pieces. What Mr. Prindle treats as steps two and three—although they may occur on different days—are really a single inquiry: where within the expanded range authorized by step one the actual sentence should fall. As we explained in Rivera,

"[i]n practical terms, the legislative command that sentencing courts consider the defendant's 'history and character' and the 'nature and circumstances' of the defendant's criminal conduct merely makes explicit what sentencing courts have always done in deciding where, within a range, to impose a sentence . . . The practice . . . falls squarely within the most traditional discretionary sentencing role of the judge" (Rivera, 5 NY3d at 69; see id. at 71 [reiterating that "the requirement that the sentencing justice reach an opinion as to the defendant's history and character is merely another way of saying that the court should exercise its discretion"]; Giles, 24 NY3d at 1071-1072 [Smith, J., concurring]; Quinones, 12 NY3d at 130; Rosen, 96 NY2d at 335).

Although the judge in this case announced that he planned to sentence Mr. Prindle within the upper register of the expanded range before [*6]hearing argument about where within that register his precise sentence should fall, his decision to be transparent about the court's intentions did not trespass on the Sixth Amendment. Nor was either the sentencing court or the Appellate Division prohibited from later deciding a sentence within the lower register would be the more appropriate punishment. In short, the minimum sentence did not increase because the{**29 NY3d at 471} lower courts always retained the discretion to sentence defendant "as if no recidivism finding existed" (Rivera, 5 NY3d at 68).

Even were Mr. Prindle correct in characterizing New York's persistent felony offender statute as increasing the sentencing floor for persistent felony offenders, that increase would not be the result of impermissible judicial fact-finding. The increase in the floor to 15 years—like the increase in the ceiling to life—would be based solely on the existence of two prior felony convictions. Indeed, as Alleyne is a mere application of the Apprendi rule (Hurst, 577 US at —, 136 S Ct at 621) and as its central contention is that there is "no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum" (Alleyne, 570 US at —, 133 S Ct at 2163)—or, to put it another way, to distinguish Apprendi from Alleyne—it follows that the same construction that shelters our persistent felony offender regime from Apprendi would also save it from the latter case.

For the foregoing reasons, we reaffirm our construction of the persistent felony offender statute and our conclusion that the statute falls squarely within the exception afforded by Almendarez-Torres.

We encourage sentencing courts and all parties engaged in these determinations to be careful to apply the persistent felony offender statute as we have construed it in Rivera and Quinones, a construction that is also thoroughly set out in the Second Circuit's opinion in Portalatin v Graham (624 F3d 69 [2010], supra).

The sentencing court in this case followed the statutory procedure in determining that Mr. Prindle is, and should ultimately be sentenced as, a persistent felony offender. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge DiFiore and Judges Rivera, Stein and Garcia concur; Judges Fahey and Feinman taking no part.

Order affirmed.