People v. Leon

OPINION OF THE COURT

Defendant Jose Leon’s conviction arises out of the sexual abuse of a 13 year old. Supreme Court subsequently conducted a hearing and adjudicated defendant a persistent violent felony offender 1 upon a finding that defendant had previously been convicted of two violent felonies—both first-degree manslaughter—in 1976, and in 1983. On this appeal, defendant presses two arguments concerning his sentence.

First, defendant contends that Crawford v Washington (541 US 36 [2004]) applies at a predicate sentencing hearing, both as a matter of his Sixth Amendment right to be confronted with the witnesses against him, and by operation of CPL 400.15 (7) *125 (a). 2 In particular, defendant argues that the hearing court violated his right to confront the author of a report certifying that he had compared two fingerprint cards of a “Jose Leon” with two prior convictions (for 1976 and 1983), bearing the identical New York State identification number, and that, in his opinion, the two “fingerprint impressions are those of the same individual.” 3 Defendant admitted that he was the same “Jose Leon” identified in the 1976, but not the 1983, conviction. Second, defendant argues that, in light of his challenge to being the same person identified in the 1983 conviction, the hearing court necessarily made a finding of fact—the fact of his identity—beyond the sole permissible fact of prior convictions in violation of Apprendi v New Jersey (530 US 466 [2000]).

The Appellate Division rejected both arguments, concluding that defendant was properly adjudicated a persistent violent felony offender “on the basis of admissible evidence (see CPL 60.60 [2]; 400.15 [7] [a]; 400.16 [2])” (36 AD3d 538 [2007]) and that his constitutional arguments were meritless. We now affirm.

Sentencing proceedings are not trial prosecutions. 4 Thus, we read Crawford, as do the Circuit Courts of Appeals to have considered the question, as addressing “[b]y its own terms” testimonial hearsay at trial (United States v Luciano, 414 F3d 174, 179 [1st Cir 2005] [collecting cases]; see also United States v Martinez, 413 F3d 239, 243 n 5 [2d Cir 2005], cert denied 546 US 1117 [2006] [collecting cases]).

Similarly, we reject defendant’s contention that CPL 400.15 (7) (a) incorporates into his sentencing hearing the trial *126 right of confrontation. Before Crawford, there was little doubt that affidavits based on fingerprint comparisons were admissible at predicate sentencing hearings (see CPL 60.60 [2]; CPLR 4520). 5 Section 400.15 (7) (a)’s requirement that evidence be subject to “the rules applicable to a trial of the issue of guilt” dates to 1967 in section 470-a of the former Code of Criminal Procedure. 6 To agree with defendant’s broad construction of section 400.15 (7) (a) is to presume too much of the Legislature’s intent, given the timing of the enactment of section 60.60 (2). Testimonial hearsay under section 60.60 (2) continued to be admitted after the passage of section 400.15, both at trial and at predicate felony hearings (although Crawford now places new restrictions at trial). Because, in our view, Crawford does not apply at sentencing proceedings, we decline to construe section 400.15 along with other hearsay statutes, which have always operated in tandem, in a way that yields unworkable results (see Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186, 195 [1988]).

Finally, we have considered defendant’s Apprendi challenge and find it also to be without merit (see People v Rivera, 5 NY3d 61 [2005]; see also United States v Johnson, 440 F3d 832, 848 [6th Cir 2006] [“Common sense dictates that these facts are ‘so basic as to be implicit in the fact of a prior conviction’ ”]; United States v Thompson, 421 F3d 278, 284 n 4 [4th Cir 2005] [same]; United States v Santiago, 268 F3d 151, 156 [2d Cir 2001] [a sentencing judge’s ability to determine whether a defendant has a prior conviction extends to “the ‘who, what, when, and where’ of a prior conviction”]).

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott concur.

Order affirmed.