Argued September 13, 2017; decided October 24, 2017

People v Garvin, 130 AD3d 644, affirmed.

In this case, we are asked to overrule our prior decisions holding that a warrantless arrest of a suspect in the threshold of a residence is permissible under the Fourth Amendment, provided that the suspect has voluntarily answered the door and the police have not crossed the threshold. We decline to do so, and now reaffirm our long-standing rule.

Defendant was convicted of four counts of third-degree robbery and one count of attempted third-degree robbery in connection with a string of bank robberies. He was arrested without a warrant inside the doorway of his home on the same{**30 NY3d at 178} day that police obtained a match for his fingerprint on a demand note used during one of the robberies. The arresting officer testified that he was instructed by a detective to go to defendant's residence to arrest him. Upon arriving there, three officers in plain clothes walked to the top of an interior staircase in the two-family house, while two detectives went to the rear of the building. One of the officers knocked on the apartment door, which was opened by another person in the residence. The officer did not know whether defendant lived on the first or the second floor and, because she did not recognize defendant when he appeared in the doorway, the officer asked if his girlfriend lived there.^[FN1] After defendant stated that his girlfriend was not there and closed the door, the officers walked down the stairs, and the arresting officer announced that he had recognized defendant from a photograph. The officers then returned to the apartment door.

The arresting officer knocked on the door, and defendant opened it. While defendant was standing in the doorway of his apartment, the officer told him that he was under arrest and, when defendant turned around and put his hands behind his back, the officer handcuffed him. The officer did not enter defendant's apartment—he placed the handcuffs on defendant as defendant stood in the doorway. Defendant was transported to the precinct, where he waived his Miranda rights, agreed to speak with the detectives, and initially denied involvement in the robberies. After the investigating detective informed defendant that both his and his girlfriend's fingerprints were found on demand notes recovered from the locations of the robberies, defendant confessed.

At his subsequent suppression hearing, defendant argued that the police violated Payton v New York (445 US 573 [1980]) by entering his home without consent or a warrant; he maintained that there was an absence of exigent circumstances once police had surrounded the home so that he could not leave. He further asserted that the police did not wait for him to exit the premises before he was arrested, and that the police had ample time to obtain an arrest warrant, but did not do so because they wanted to question him without counsel.

Supreme Court denied the motion to suppress. Following a bench trial, defendant was convicted as stated above. The{**30 NY3d at 179} People requested that defendant be adjudicated a persistent felony offender based upon prior first- and second-degree robbery convictions. Following a hearing, the court adjudicated defendant a persistent felony offender and sentenced him to an aggregate term of 15 years to life in prison. [*3]

The Appellate Division affirmed, with one Justice dissenting (130 AD3d 644 [2d Dept 2015]). That Court concluded that defendant's warrantless arrest did not violate Payton (see id. at 645). The Appellate Division made factual findings that, after entering the front door of the house, passing through a vestibule and climbing the stairs, "[o]ne of the officers knocked on the closed apartment door, the defendant opened it, and the officer effectuated the arrest in the doorway. The arresting officer did not go inside the defendant's apartment, or reach in to pull the defendant out" (id. [citations omitted]). Most critically here, the Appellate Division found that "defendant was arrested at the threshold of his apartment, after he voluntarily emerged" (id. [internal quotation marks and citation omitted]).^[FN2] Thus, the Appellate Division concluded that defendant had voluntarily "surrendered the enhanced constitutional protection of the home" (id. [internal quotation marks and citation omitted]). The Appellate Division also upheld the persistent felony offender adjudication. The dissenting Justice diverged from the majority only with respect to the denial of defendant's motion to suppress, concluding that the People failed to establish that the initial police entry into the building where defendant lived was lawful because there was no evidence that the police knew the building was a two-family house, rather than a one-family house, prior to entering it (see id. at 646).

The dissenting Justice thereafter granted defendant leave to appeal.

Defendant's primary argument is that his post-arrest statements and the physical evidence recovered from him at the precinct should have been suppressed because his warrantless arrest in the doorway of his apartment was unconstitutional under Payton. Specifically, he asserts that the arrest{**30 NY3d at 180} violated his constitutional right to be free from unreasonable searches and seizures because he opened his door only in response to knocking by police officers who were there for the sole purpose of arresting him without a warrant. Defendant's arguments are refuted by our precedent.

Although "[i]t is axiomatic that warrantless entries into a home to make an arrest are presumptively unreasonable" (People v McBride, 14 NY3d 440, 445 [2010] [internal quotation marks and citation omitted and emphasis added]), we "have long recognized that the Fourth Amendment is not violated every time police enter a private premises without a warrant" (People v Molnar, 98 NY2d 328, 331 [2002]). There are "a number of 'carefully delineated' [*4]exceptions to the Fourth Amendment's Warrant Clause" in that context (Molnar, 98 NY2d at 331, quoting Welsh v Wisconsin, 466 US 740, 749-750 [1984]). One of those exceptions is consent to entry (see id. at 331 n 1; People v Levan, 62 NY2d 139, 142 [1984]). Similarly, we have repeatedly and consistently recognized that, even where "the police could have obtained an arrest warrant for [a] defendant from a neutral magistrate before it dispatched . . . members from its force to [the] defendant's home . . . , there [i]s nothing illegal about the police going to [a] defendant's apartment and requesting that he [or she] voluntarily come out" (McBride, 14 NY3d at 447; see People v Spencer, 29 NY3d 302, 312 [2017]; People v Reynoso, 2 NY3d 820, 821 [2004]; People v Minley, 68 NY2d 952, 953-954 [1986]).

The Supreme Court of the United States held in Payton itself that "the Fourth Amendment . . . prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest" (445 US at 576 [emphasis added]) despite "ample time to obtain a warrant" (id. at 583). The Court explained that "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant" (id. at 590).

As the Supreme Court has subsequently explained, Payton does not prohibit the police from knocking on a suspect's door because,

"[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the{**30 NY3d at 181} opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak" (Kentucky v King, 563 US 452, 469-470 [2011]).

Consistent with that understanding of Payton as prohibiting only "the police . . . crossing the threshold of a suspect's home to effect a warrantless arrest in the absence of exigent circumstances" (Minley, 68 NY2d at 953), we have upheld warrantless arrests—both planned and unplanned—of defendants who emerged from their homes after police knocked on an open door and requested that the defendant come out (see Spencer, 29 NY3d at 312, revg on other grounds 135 AD3d 608 [1st Dept 2016]), used a noncoercive ruse to lure the defendant outside (see People v Roe, 73 NY2d 1004, 1005 [1989], affg 136 AD2d 140 [3d Dept 1988]), or directed the defendant to come out after seeing him peek through a window (see Minley, 68 NY2d at 953). We also upheld a planned, warrantless arrest where the defendant either voluntarily exited his house, or stood behind his mother in the front doorway, and stuck his head out of the door in response to a police request that he come outside (see Reynoso, 2 NY3d at 821, affg 309 AD2d 769 [2d Dept 2003]). In other words, for purposes of determining whether there was a Payton violation, we have deemed it to be irrelevant whether the defendant was actually standing outside his home or was standing "in the doorway," and we have upheld a threshold arrest, {**30 NY3d at 182}like that at issue here.^[FN4] Critically, the police never entered the defendants' homes in these cases and, thus, the intrusion prohibited by Payton did not occur.

Despite our jurisprudence on this issue, defendant and two of our dissenting colleagues, Judges Wilson and Rivera, urge us to adopt a new rule that warrantless "threshold/doorway arrests" violate Payton when the only reason the arrestee is in the doorway is that he or she was summoned there by police. Defendant purports to find support for this rule in United States v Allen (813 F3d 76 [2d Cir 2016]), which he urges us to adopt and characterizes as holding that the police may not go to a suspect's home and lure him or her to the doorstep for [*6]the sole purpose of making a warrantless arrest.^[FN5] However, we are not bound by Allen^[FN6] and, in any event, it is distinguishable. In that case, police went to the defendant's apartment with the plan of arresting him (see id. at 78). After they knocked on the defendant's door, he stepped out onto his second floor porch and police requested that he come down to speak with them (see id. at 79). The defendant complied and, after speaking to{**30 NY3d at 183} the officers for several minutes, they told him that he would have to come down to the police station to be processed for an alleged assault—i.e., that he was under arrest (see id.). The Second Circuit noted that "neither party dispute[d] that [the defendant] was arrested while he was still inside his home" or that the defendant "was arrested while standing inside the threshold of his home" (see id. at 80 n 6). Thus, "th[e] case concern[ed] an 'across the threshold' arrest" (id.)—i.e., while the police remained outside on the sidewalk (see id. at 79), the defendant "was arrested specifically 'in' his home rather than 'on' the threshold or in a 'public place' " (id. at 89 [Lohier, J., concurring]). After the defendant was arrested, police accompanied him upstairs in his home so that he could retrieve a pair of shoes; once inside, the officers saw, among other things, drug paraphernalia and obtained a search warrant (see id. at 79).[*7]

The Second Circuit held that, "where law enforcement officers have summoned a suspect to the door of his home, and he remains inside the home's confines, they may not effect a warrantless 'across the threshold' arrest in the absence of exigent circumstances" (id. at 82 [emphasis added]). That is, "[a] police officer not armed with a warrant may approach a home and knock," but "may [not] go to a person's home . . . and then arrest him while he remains in his home" (id. at 84 [emphasis added]). Although the Second Circuit recognized that a federal "circuit split" exists on the issue, with some courts holding that police do not violate Payton unless they enter the home, that court reasoned that Payton turns on the arrested person's location, not the location or conduct of the officers (see id. at 78, 81-82, 85).^[FN7]

{**30 NY3d at 184}Here, the issues of where defendant was standing at the time of his arrest and whether he was in that location voluntarily are mixed questions of law and fact (see Spencer, 29 NY3d at 312). We are, therefore, bound by the Appellate Division's finding that defendant was arrested "in the doorway" after he "voluntarily emerged," for which there is record support (130 AD3d at 645; see People v Bradford, 15 NY3d 329 [2010]). Thus, Allen, which applies to " 'across the threshold' arrests" (813 F3d at 81, 85, 87, 88), is distinguishable and does not apply here.

Defendant further claims that this case is ultimately about closing a loophole to [*8]our decision in People v Harris, in which "we h[e]ld that our State Constitution requires that statements obtained from an accused following a Payton violation must be suppressed unless the taint resulting from the violation has been attenuated" (77 NY2d 434, 437 [1991]). We explained that, "[u]nder both Federal and State law, the right to counsel attaches once criminal proceedings have commenced" (id. at 439). However, while "[u]nder the [f]ederal rule, . . . criminal proceedings do not necessarily start when an arrest warrant is issued . . . , criminal proceedings must be instituted before the police can obtain a warrant" in New York (id. at 439-440). Thus, in New York, "police are prohibited from questioning a suspect after an arrest pursuant to a warrant unless counsel is present," creating an incentive "to violate Payton . . . because doing so enables them to circumvent the accused's indelible right to counsel" (id. at 440). Defendant, as well as Judges Rivera and Wilson in their respective dissents, focuses on the intent of the police in going to a defendant's home and urges that sanctioning preplanned doorway arrests—or, presumably, arrests where the police request that the defendant step outside to speak to them with the intent of effectuating a preplanned arrest—similarly permits police to circumvent a suspect's right to counsel. Thus, defendant contends, and the two dissenters on this issue agree, that we should prohibit arrests where the police lure a suspect to the door with the subjective intent of making a preplanned, warrantless arrest.

Inasmuch as Harris applies only to statements obtained following a Payton violation, suppressing defendant's statements{**30 NY3d at 185} here would require us to overrule our prior cases holding that preplanned, warrantless arrests do not violate Payton where the defendant exited his residence or stood on the threshold either due to a police request or to a ruse employed by the police.^[FN8] We decline to do so based upon the principle of stare decisis, "the doctrine which holds that common-law decisions should stand as precedents for guidance in cases arising in the future and that a rule of law once decided by a court, will generally be followed in subsequent cases [*9]presenting the same legal problem" (People v Peque, 22 NY3d 168, 194 [2013] [internal quotation marks and citation omitted], cert denied sub nom. Thomas v New York, 574 US —, 135 S Ct 90 [2014]). Stare decisis "rests upon the principle that a court is an institution, not merely a collection of individuals, and that governing rules of law do not change merely because the personnel of the court changes" (People v Bing, 76 NY2d 331, 338 [1990]), as well as the "humbling assumption, often true, that no particular court as it is then constituted possesses a wisdom surpassing that of its predecessors" (People v Hobson, 39 NY2d 479, 488 [1976]).

While we apply the doctrine less rigidly in resolving constitutional issues (see Bing, 76 NY2d at 338), "[e]ven under the most flexible version of the doctrine applicable to constitutional jurisprudence, prior decisions should not be overruled unless a 'compelling justification' exists for such a drastic step" (Matter of State Farm Mut. Auto. Ins. Co. v Fitzgerald, 25 NY3d 799, 819 [2015]). We have found such "compelling justification[s]" when a prior decision has led

"to an unworkable rule, or . . . create[d] more questions than it resolves; adherence to a recent precedent involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience; or a preexisting rule, once thought defensible, no longer serves the ends of justice or withstands the cold light of logic and experience" {**30 NY3d at 186}(Peque, 22 NY3d at 194 [internal quotation marks and citations omitted]).

Far from being unworkable, as the Appellate Division noted in this case, the current rule "is clear and easily understood: a person enjoys enhanced constitutional protection from a warrantless arrest in the interior of the home, but not on the threshold itself or the exterior" (130 AD3d at 645). Moreover, we are not asked to overrule a recent precedent that conflicts with a broader, preexisting doctrine, but to adopt a rule that looks to the subjective intent of the police and is, therefore, "fundamentally inconsistent with . . . Fourth Amendment jurisprudence" itself (Kentucky v King, 563 US at 464). Both this Court and the Supreme Court have "rejected a subjective approach, asking only whether the circumstances, viewed objectively, justify the action" (id. [internal quotation marks omitted]; see People v Robinson, 97 NY2d 341, 349 [2001]). As both Courts have explained, " '[t]he touchstone of the Fourth Amendment is reasonableness'—not the warrant requirement" (see Molnar, 98 NY2d at 331, quoting United States v Knights, 534 US 112, 118 [2001]). Therefore, this Court has emphasized that "the 'Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances, whatever the subjective intent' " (People v Robinson, 97 NY2d at 349 [emphasis added], quoting Whren v United States, 517 US 806, 814 [1996]). Based on long experience, we "acknowledge[d] the difficulty, if not futility, of basing the constitutional validity of searches or seizures on judicial determinations of the subjective [*10]motivation of police officers" (id. at 350 [internal quotation marks and citation omitted]). Thus, under the circumstances presented here, it is not our prior precedent that "involves collision with a prior doctrine more embracing in its scope" (Peque, 22 NY3d at 194), but the rule proposed by defendant, as well as the even broader rule proposed by Judges Wilson and Rivera in dissent.

With respect to the effect of the current rule on our own jurisprudence, it certainly cannot be said that "the Judges considering these cases [have been] sharply divided . . . about how to apply the . . . rule [or] about the more fundamental {**30 NY3d at 187}question of whether the facts presented are even encompassed within it" (Bing, 76 NY2d at 348). Rather, all of our prior cases addressing the issue over the last 30 years—from Minley to Spencer—have been unanimous and posed little difficulty. Moreover, Spencer, decided just a few months ago, reaffirmed both Reynoso and Minley. Overturning those cases now would both undermine the purposes of stare decisis—which are "to promote efficiency and provide guidance and consistency in future cases" (Bing, 76 NY2d at 338)—and "unsettle the belief 'that bedrock principles are founded in the law rather than in the proclivities of individuals' " (id. at 361 [Kaye, J., concurring in part and dissenting in part], quoting Vasquez v Hillery, 474 US 254, 265 [1986]). Furthermore, the various rules urged by defendant and Judges Wilson and Rivera would throw into confusion a " 'bright line' rule[ ]" that has long " 'guide[d] the decisions of law enforcement and judicial personnel who must understand and implement our decisions in their day-to-day operations in the field' " (People v Garcia, 20 NY3d 317, 323 [2012], quoting People v P.J. Video, 68 NY2d 296, 305 [1986], cert denied 479 US 1091 [1987]).

As for the cold light of logic and experience, "[p]ermitting the police to make a warrantless arrest of a person who answers the door (or who is properly summoned to the door . . . )" has been described as "mak[ing] great sense" (3 Wayne R. LaFave, Search and Seizure § 6.1 [e] [5th ed 2012]). Under that rule, to which we have consistently adhered,

"the police are quite properly relieved from having to obtain arrest warrants in a large number of cases in advance, and the warrant process is thereby not overtaxed (thus giving greater assurance it will not become a mechanical routine). But if in a particular case in which there were no exigent circumstances to start with the intended arrestee at the door elects to exercise the security of the premises by not submitting to the arrest, then it is hardly unfair that the police should be required to withdraw and return another time with a warrant" (id.).

In short, there is no compelling justification to overrule our prior cases in order to expand Harris by recognizing a new category of Payton violations based on subjective police intent. Rather, overruling our prior cases would present an unacceptable obstruction to law enforcement, eliminate a clear and workable rule that has guided the courts for decades, undermine predictability in the law and reliance upon our decisions, and suggest that "our decisions arise [not] from a continuum of legal principle[,] [but] the personal caprice of the members of this Court" (Peque, 22 NY3d at 194). Such a result is untenable.

Defendant's remaining arguments do not require extended discussion. His additional challenges to the legality of his arrest and the lack of attenuation of his subsequent statements from that arrest are either unpreserved, academic or unreviewable pursuant to the LaFontaine/Concepcion rule, which precludes us "from reviewing an issue that was either decided in an appellant's favor or was not decided by the trial court" (People v Ingram, 18 NY3d 948, 949 [2012]; see People v Concepcion, 17 NY3d 192 [2011]; People v LaFontaine, 92 NY2d 470 [1998]).^[FN10] His claim that his statement to police was involuntary presents a mixed question, [*12]and there is record support {**30 NY3d at 189}for the conclusion of the Appellate Division to the contrary. Finally, defendant's challenge to his persistent felony offender adjudication is governed by our decision in People v Prindle (29 NY3d 463 [2017]), which requires an affirmance here. Contrary to defendant's contentions, neither Hurst v Florida (577 US —, 136 S Ct 616 [2016]) nor Descamps v United States (570 US 254 [2013]) compels a different result. Nor have any new reasons been presented that would otherwise require us to retreat from an interpretation that we reaffirmed as recently as Prindle.

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

Fahey, J. (dissenting in part).

I would vacate defendant's sentence and remit to Supreme Court for resentencing. New York's persistent felony offender sentencing scheme is unconstitutional under Apprendi v New Jersey (530 US 466 [2000]). I disagree with this Court's line of cases from People v Rosen (96 NY2d 329 [2001]) to People v Prindle (29 NY3d 463 [2017]), holding that the statutory sentencing scheme lies "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" (Prindle, 29 NY3d at 466). However, I agree with the majority's analysis of the Payton issue in this case and with the Court's disposition of defendant's remaining arguments. Consequently, I dissent, but only in part.

A persistent felony offender is, by definition, an individual, "other than a persistent violent felony offender as defined in [Penal Law §] 70.08, who stands convicted of a felony after having previously been convicted of two or more felonies," specifically defined (Penal Law § 70.10 [1] [a]). Being a "persistent felony offender" is, however, only one of two necessary conditions for the imposition of an enhanced sentence under the pertinent sentencing statute, Penal Law § 70.10. The other necessary condition is that the sentencing court must be of [*13]the reasoned opinion, as set out in the sentencing record, "that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public{**30 NY3d at 190} interest" (Penal Law § 70.10 [2]). If the first necessary condition is met, but not the second, a persistent felony offender may not be given enhanced sentencing.

The Criminal Procedure Law confirms that both conditions are necessary, and that neither is on its own sufficient. Persistent felony offender enhanced sentencing

"may not be imposed unless . . . the court (a) has found that the defendant is a persistent felony offender as defined in subdivision one of section 70.10 of the penal law, and (b) is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest" (CPL 400.20 [1] [emphases added]).

On the second prong, the sentencing court, in order to reach the "opinion" that enhanced sentencing is warranted, "must . . . make such findings of fact as it deems relevant" (CPL 400.20 [9] [emphasis added]). Moreover, a record of the basis for the sentencing court's findings must be set forth (see CPL 400.20 [3] [b]).

The two necessary conditions have differing standards of proof. "A finding that the defendant is a persistent felony offender, as defined in [Penal Law § 70.10 (1)], must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to the trial of the issue of guilt," whereas "[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct may be established by any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence, and the standard of proof with respect to such matters shall be a preponderance of the evidence" (CPL 400.20 [5]).

The United States Supreme Court held in Apprendi v New Jersey (530 US 466 [2000]) and its progeny that, under the Due Process Clause of the Fourteenth Amendment and the right to a jury trial guaranteed by the Sixth Amendment, a jury must determine each element of a crime beyond a reasonable doubt, including any fact that has the effect of increasing the prescribed range of penalties to which a defendant is exposed{**30 NY3d at 191} at sentencing (see Apprendi, 530 US at 489-490; see also Alleyne v United States, 570 US 99, 103 [2013] ["Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt"]). One exception is a fact admitted by the defendant (see Blakely v Washington, 542 US 296, 303 [2004]), and the other is the established fact of a prior felony conviction (see Almendarez-Torres v United States, 523 US 224 [1998]).

At issue in Apprendi was a hate crime sentencing scheme that allowed a judge to increase a defendant's penalty beyond the maximum sentence range authorized for a particular [*14]crime, based on the judge's finding by a preponderance of the evidence that defendant committed a crime with the intent to intimidate based on race, religion, color, gender, ethnicity, sexual orientation, or handicap. Apprendi ruled that a jury, not a judge, must find, beyond a reasonable doubt, that a defendant acted with such a biased purpose, in order for the sentencing enhancement to be imposed. The hate crime statute violated the Constitution because it required a judge to find an element that would increase the defendant's sentence, instead of submitting that question of fact to the jury, and it allowed the judge to decide the fact using a lesser standard of proof.

In subsequent years, the Apprendi doctrine has been applied "to instances involving plea bargains, sentencing guidelines, criminal fines, mandatory minimums, and . . . capital punishment" (Hurst v Florida, 577 US —, —, 136 S Ct 616, 621 [2016] [citations omitted], citing Blakely v Washington, 542 US 296 [2004]; United States v Booker, 543 US 220 [2005]; Southern Union Co. v United States, 567 US 343 [2012]; Alleyne, 570 US 99 [2013]; Ring v Arizona, 536 US 584 [2002]).

This Court first considered the import of Apprendi in People v Rosen (96 NY2d 329 [2001]), in which the defendant contended that the persistent felony offender sentencing provisions of Penal Law § 70.10 and CPL 400.20 (5) violated his right to trial by jury under Apprendi. This Court analyzed the statutes as follows:

"Under New York law, to be sentenced as a persistent felony offender, the court must first conclude that defendant had previously been convicted of two or more felonies for which a sentence of over one year was imposed. Only after it has been{**30 NY3d at 192} established that defendant is a twice prior convicted felon may the sentencing court, based on the preponderance of the evidence, review '[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct . . . established by any relevant evidence, not legally privileged' to determine whether actually to issue an enhanced sentence (CPL 400.20 [5]). It is clear from the foregoing statutory framework that the prior felony convictions are the sole [determinant] of whether a defendant is subject to enhanced sentencing as a persistent felony offender." (Rosen, 96 NY2d at 334-335.)

This analysis was fundamentally flawed. It is true, of course, that under Penal Law § 70.10, for a defendant to be sentenced as a persistent felony offender, the court must first conclude that defendant had previously been convicted of two or more felonies for which a sentence of over one year had been imposed. That is the first necessary condition of persistent felony offender enhanced sentencing. It is also true that the sentencing court would only review the defendant's history and character and the nature and circumstances of his or her criminal [*15]conduct after concluding that the first condition had been met. However, it was a complete non sequitur to conclude from these propositions that prior felony convictions are the sole determinant of whether a defendant is subject to persistent felony offender enhanced sentencing.

The statute is clear that a defendant is subject to enhanced sentencing—i.e., may have enhanced sentencing imposed on him—as a persistent felony offender only if both statutory necessary conditions are met. Only "[w]hen the court has found . . . that a person is a persistent felony offender, and . . . it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest," may the court impose the enhanced sentence (Penal Law § 70.10 [2] [emphasis added]).

The Rosen Court, after thus misreading the statutory language, added that the sentencing court, in deciding whether extended incarceration and lifetime supervision will best serve the public interest, is "only fulfilling its traditional role . . . in determining an appropriate sentence within the permissible statutory range" (Rosen, 96 NY2d at 335). This analysis, clearly{**30 NY3d at 193} designed to suggest that the second necessary condition of persistent felony offender enhanced sentencing is purely discretionary, rather than a fact-finding exercise, misstated the sentencing court's task. Deciding whether "the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest" (Penal Law § 70.10 [2]) is deciding a question that has one of only two answers: yes, the public interest is best served by extended incarceration and lifetime supervision, or no, it is not. It is not an exercise in determining a sentence within a range. That comes later, when the sentencing court actually imposes the sentence. Moreover, as the statutes themselves clarify, the Penal Law § 70.10 (2) determination involves making "findings of fact" (CPL 400.20 [9]).

In People v Rivera (5 NY3d 61 [2005]), the defendant—one of many to do so—asked the Court to overturn Rosen. The Court declined. While properly analyzing the question to be "whether any facts beyond those essential to the jury's verdict (other than prior convictions or admissions) were necessary for the trial judge to impose the persistent felony offender sentence" (Rivera, 5 NY3d at 65-66), the Court reiterated its earlier flawed conclusion that a defendant's prior convictions constitute the sole determinant for whether he or she is subject to persistent felony offender sentencing, suggesting that Penal Law § 70.10 "authorizes" sentencing as a persistent felony offender "once the court finds persistent felony offender status" (id. at 66). Rivera ignored the clear statutory language making the Penal Law § 70.10 (2) determination a necessary condition of the imposition of persistent felony offender sentencing.

Contrary to Rivera, the mere existence of the prior felonies is not a "sufficient condition[ ] for imposition of the authorized sentence for recidivism" (Rivera, 5 NY3d at 68; see also Prindle, 29 NY3d at 467), but only a necessary condition. As Chief Judge Kaye observed in [*16]her dissent,

"[f]itting the definition of a persistent felony offender under Penal Law § 70.10 (1) is necessary but not sufficient to render a defendant eligible for enhanced sentencing under CPL 400.20. Rather, an enhanced sentence is available only for those who additionally are found to be of such history and character, and to have committed their criminal{**30 NY3d at 194} conduct under such circumstances, that extended incarceration and lifetime supervision will best serve the public interest. The persistent felony offender statute thus stands in stark contrast to Penal Law § 70.08, which requires that all three-time violent felons be sentenced to an indeterminate life term on the basis of the prior convictions alone" (Rivera, 5 NY3d at 73 [Kaye, Ch. J., dissenting] [citation omitted]).

Other Judges of this Court have dissented in persistent felony offender sentencing cases for the same reason, among others (see Rivera, 5 NY3d at 79-80 [Ciparick, J., dissenting]; People v Battles, 16 NY3d 54, 63-65 [2010, Lippman, Ch. J., dissenting in part]; People v Giles, 24 NY3d 1066, 1073-1074 [2014, Abdus-Salaam, J., concurring in part and dissenting in part]). As Judge Ciparick noted, review of related statutes confirms Chief Judge Kaye's insight.

"Had the Legislature intended for the inquiry to end at recidivism, it could, for example, have replicated the language of Penal Law § 70.08, which mandates sentencing for persistent violent felony offenders based solely on recidivism, or it could have used the [similar] language of Penal Law § 70.04 or § 70.06 as it relates to second felony offenders and second violent felony offenders" (Rivera, 5 NY3d at 80 [Ciparick, J., dissenting]).

The Rivera Court further erred by holding that a sentencing court's Penal Law § 70.10 (2) determination—that the defendant's character and criminality indicate that the public interest is best served by extended incarceration and lifetime supervision—"describes the exercise of judicial discretion characteristic of indeterminate sentencing schemes" (id. at 66) and "falls squarely within the most traditional discretionary sentencing role of the judge" (id. at 69). As the Court put it, "[o]nce the defendant is adjudicated a persistent felony offender, 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" (id. at 71).

This was an attempt to give an alternate source of support for the Rosen Court's notion that a sentencing court's determination that enhanced sentencing would serve the public interest{**30 NY3d at 195} was simply a matter of the sentencing court's "fulfilling its traditional role" (Rosen, 96 NY2d at 335). In a footnote, the Rivera Court suggested that judicial findings prohibited by [*17]Apprendi "relate to the crime for which the defendant was on trial and, as quintessential fact questions, would properly have been subject to proof before the jury, in stark contrast to traditional sentencing analysis of factors like the defendant's difficult childhood, remorse or self-perceived economic dependence on a life of crime" (Rivera, 5 NY3d at 69 n 8).

Rivera, however, was inconsistent with Apprendi and its progeny. The exercise of determining whether enhanced sentencing would serve the public interest may involve the application of the sentencing judge's discretion, but it is no less factual for being, in the end, discretionary in nature. In order to exercise discretion on the subject of whether enhanced sentencing would serve the public interest, the sentencing court must first make findings concerning "the facts surrounding defendant's history and character" (Rivera, 5 NY3d at 67), or, as the Criminal Procedure Law puts it, "must . . . make such findings of fact as it deems relevant" (CPL 400.20 [9] [emphasis added]). Furthermore, as Chief Judge Kaye noted in her dissent in Rivera, the Supreme Court has made it "clear that any factfinding essential to sentence enhancement must be decided by a jury, even if it is general and unspecified in nature, and even if the ultimate sentencing determination is discretionary" (Rivera, 5 NY3d at 73-74 [Kaye, Ch. J., dissenting] [footnote and emphasis omitted]).

The Supreme Court had clarified that point in Blakely v Washington (542 US 296 [2004] [holding that Apprendi was violated where the sentencing court had to find that defendant acted with "deliberate cruelty" in order to impose enhanced sentencing]). In Blakely, the Supreme Court observed that "[w]hether the judge's authority to impose an enhanced sentence depends on finding a specified fact . . . , one of several specified facts . . . , or any aggravating fact . . . , it remains the case that the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact" (Blakely, 542 US at 305 [emphasis omitted]). Moreover, the Supreme Court explained, it does not

"matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. He [or she] cannot{**30 NY3d at 196} make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence" (Blakely, 542 US at 305 n 8 [emphasis omitted]).

"broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from [Apprendi]. If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied" (Cunningham v California, 549 US 270, 290 [2007]).

Rivera, like Rosen before it, was not correctly decided, because the findings contemplated by Penal Law § 70.10 (2) involve facts that have the effect of increasing the prescribed range of penalties to which a defendant is exposed at sentencing, within the meaning of Apprendi. In sum, it is clear that a sentencing court, in deciding "that the history and character [*18]of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest" (Penal Law § 70.10 [2]), is necessarily making factual findings that must instead be made by the jury, under Apprendi.

"The constitutionality of sentences imposed under this sentencing scheme has, not surprisingly, been a practically constant subject of litigation since Apprendi" (Battles, 16 NY3d at 61 [Lippman, Ch. J., dissenting in part]). In the years since Rosen and Rivera, this Court has reiterated the misguided analysis provided in those opinions: that the first prong of Penal Law § 70.10 is the sole determinant of persistent felony offender sentencing, and that

"New York's sentencing scheme, by requiring that sentencing courts consider defendant's 'history and character' and the 'nature and circumstances' of defendant's conduct in deciding where, within a range, to impose an enhanced sentence, sets the{**30 NY3d at 197} parameters for the performance of one of the sentencing court's most traditional and basic functions, i.e., the exercise of sentencing discretion" (People v Quinones, 12 NY3d 116, 130 [2009]; see also Prindle, 29 NY3d at 466-467).

The foregoing discussion of the statutes, however, demonstrates that Penal Law § 70.10 (2) is a separate necessary condition, and does not simply allow a sentencing court to "decid[e] where, within a range, to impose an enhanced sentence" (Quinones, 12 NY3d at 130); rather, it requires that a sentencing court decide whether the factual circumstances of defendant's crimes and character warrant enhanced sentencing, before imposition of any enhanced sentence is permissible.

As my colleague Judge Abdus-Salaam wrote, a "recitation of the statutory terms suffices to show that . . . the persistent felony offender sentencing scheme violates the Apprendi rule," and the Court's "Apprendi precedents have devolved into hollow and discredited words supporting a clearly unconstitutional sentencing framework" (Giles, 24 NY3d at 1074, 1076 [Abdus-Salaam, J., concurring in part and dissenting in part]).

I do not quarrel with the majority's statement that the resolution of the Apprendi issue here "is governed by" our precedents (majority op at 189), but I believe there is "compelling justification for" overruling our prior holdings in this area, because they "create[ ] more questions than [they] resolve[ ]" and "no longer serve[ ] the ends of justice or withstand[ ] the cold light of logic and experience" (People v Peque, 22 NY3d 168, 194 [2013] [internal quotation marks and citations omitted]).

I add a final comment on their larger significance and "real effect" (Battles, 16 NY3d at 65 [Lippman, Ch. J., dissenting in part]) in our system of justice. Exposing defendants to criminal penalties more severe than could be imposed based upon the jury verdict and prior convictions alone, without a jury making the factual determinations necessary for the [*19]enhancement in punishment, is abhorrent not only to the Federal Constitution but also to basic justice. For example, under Penal Law § 70.10, a nonviolent serial shoplifter convicted of criminal possession of stolen property in the fourth degree, a class E felony for which the maximum sentence is four years' imprisonment (see Penal Law § 70.00 [2] [e]), may be given "the sentence of {**30 NY3d at 198}imprisonment authorized by [Penal Law § 70.00] for a class A-I felony" (Penal Law § 70.10 [2]), which is a minimum sentence of 15 years to life (see Penal Law § 70.00 [3] [a] [i]; see People v Ellison, 124 AD3d 1230 [4th Dept 2015], lv denied 25 NY3d 1201 [2015], vacated and mot for writ of error coram nobis granted 136 AD3d 1354 [2016] [granting motion in light of defense counsel's failure to challenge finding that defendant is a persistent felony offender]). Applying the Court's interpretation of the statutory sentencing scheme allows a judge, without jury fact-finding on the factual circumstances of defendant's history and character, to punish such a shoplifter with the penalty associated with violent crimes such as kidnapping in the first degree (Penal Law § 135.25), aggravated murder (Penal Law § 125.26), or murder in the first or second degree (Penal Law §§ 125.27, 125.25). Silence in the face of such injustice would amount to acquiescence. Accordingly, I dissent.