1 No. 28
The People &c.,
Respondent,
v.
Harry Rosen,
Appellant.
_________________________________________________________________
2001 NY Int. 39
April 3, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Andrew C. Fine, for appellant.
Ilisa T. Fleischer, for respondent.
Edward Lindner, for the Attorney General.
_________________________________________________________________
SMITH, J.:
While riding on the subway one morning, two passengers observed
defendant put his hand beneath the skirt of a four-year- old girl and
fondle her. After the passengers notified the child's mother,
defendant attempted to escape but was caught and arrested. Defendant
pleaded guilty to first degree sexual abuse, the maximum sentence for
which is seven years. The plea court informed him that it would impose
a sentence of three to six years. The court ordered a psychiatric
evaluation to accompany defendant's pre-sentence report.
Based on evidence contained in the psychological evaluation and the
pre-sentence report, the prosecutor sought a hearing to have defendant
sentenced as a persistent felony offender, which would authorize an
increase in defendant's sentence beyond the maximum seven years. The
court gave defendant an opportunity to recant his plea and explained
that if defendant chose to retain the plea and were adjudicated a
persistent felon, the court would consider the prosecutor's
application and enhance the sentence. Defense counsel insisted on
specific performance of the plea agreement, after which the court, sua
sponte, vacated the plea and sent the matter to trial.
At a pre-trial hearing, the Trial Court instructed the prosecutor that
the arresting officer was precluded from testifying about defendant's
prior sex-related convictions, prior sex crime record or any
statements made by defendant that related to his RAP sheet. At trial,
SNIPPETS:
While riding on the subway one morning, two passengers observed defendant put his hand
The court ordered a psychiatric evaluation to accompany defendant's pre-sentence report.
Based on evidence contained in the psychological evaluation and the pre-sentence report, the
The court gave defendant an opportunity to recant his plea and explained that if defendant
Defense counsel insisted on specific performance of the plea agreement, after which the
At a pre-trial hearing, the Trial Court instructed the prosecutor that the arresting officer
The Court denied defendant's motion and gave a curative instruction to the jury,
Defendant was ultimately convicted of first-degree sexual abuse and endangering the welfare
The court held a hearing pursuant to CPL 400.20 to determine whether to adjudicate defendant
As set forth in CPL 400.20, the court first concluded that defendant was a persistent felony
The Appellate Division unanimously affirmed, concluding, among other things, that the trial
A Judge of this Court granted the defendant leave to appeal.
Defendant claims, for the first time on this appeal, that the discretionary persistent felony
People v Hernandez,, 94 NY2d 552; People v Monroe,, 90 NY2d 982).
Defendant further maintains that application of the discretionary persistent felony offender
The Due Process Clause of the United States Constitution "protects the accused against
The issue in Apprendi, as framed by the United States Supreme Court, was "whether the due
"Other than the fact of a prior conviction, any fact that increases the penalty for a crime
With that exception, we endorse the statement of the rule set forth in the concurring
In this case, however, it was defendant's prior felony convictions -- an explicitly noted
Only after it has been established that defendant is a twice prior convicted felon may the
the Court must consider other enumerated factors to determine whether it "is of the opinion
defendant's argument that his State and Federal constitutional rights were violated because
Defendant's contention that the trial court lacked statutory authority to vacate his plea was
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