NYSCOA to hear felony sentencing challenges

The state’s persistent felony offender statute directs trial judges to increase sentences after taking into consideration the history and character of a defendant with three or more felony convictions. Seven cases will be argued Monday — People v. Jamel Bell, People v. Charles Frazier, People v. Calvin Battles, People v. Ulysess McKnight, People v. Peter Wells, People v. William Porto and People v. Rodriguece Garcia, a/k/a Carlos Rodriguez.

The state’s highest court has upheld the law three times in recent years, but a unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit declared the sentencing provision violates the Sixth Amendment.

Each of the cases includes persistent offenders. One, Peter Wells, was charged with multiple counts of robbery and burglary based on complaints made in late 2005 by two elderly residents of Queens who said he entered their homes under false pretenses and stole their wallets, according to court records. 

Wells was convicted of first-degree robbery, first- and second-degree burglary and lesser counts, and was sentenced as a persistent felony offender and persistent violent felony offender to an aggregate term of 25 years to life. He otherwise would have faced a sentence of four years to a maximum term of 25 years.

Herb Lewis, a partner with Darweesh, Lewis, Kelly and Von Dohlen LLP, a prosecutor for 12 years and a defense attorney 28 years, said the “three strikes and you’re out” felony law is unjust.

“It’s overkill,” said Lewis, who has handled 160 cases. “Elected judges should be allowed to look at each case as a difference case, and judge each case on the circumstances of that case. If someone’s record shows the need for a harsher sentence, they should be allowed to make that call.”

The state Legislature created the strict guidelines for both repeat felony offenders and repeat violent felony offenders. Defendants convicted of two felonies can be eligible for persistent felon designation and receive 15 years with a maximum of life for a third felony.

According to a report by The Legal Aid Society, 2,467 inmates are now serving sentences in New York as persistent felony offenders, many of whom would request their sentences be overturned if the Court of Appeals rules in the appellants’ favor.

Lewis said he doesn’t think that will happen because it would mean the state Legislature’s law was unconstitutional when it passed.

“Practically speaking, I don’t think the Court of Appeals, who has viewed sentencing this way for so many years, is going to say that the Legislature didn’t have the constitutional right to set sentencing,” Lewis said. “The legislative intent was that the statutes should be passed and applied to individuals, in spite of due process considerations. … What they’re saying is that the court does not have any discretion.”

Lewis said judges should be given more authority in sentencing and not remove juries from the sentencing process.

“In a way, it’s a more liberal approach to sentencing, giving the judge more say in sentencing,” he said. “Judges who were elected by the community because of their abilities should have a lot more discretion in sentencing.”

Lewis said receiving longer sentences does not work to deter people from committing crimes.

“I don’t think people stop committing crimes because of how much time they’ll get in jail,” he said. “They don’t think ‘I’m going to get five years if I carry a gun, but if I don’t and just threaten them, I’m going to get a lesser sentence.’”

Calls to the District Attorneys Association of New York President Derek Champagne and to Monroe County District Attorney Michael C. Green were not returned by press deadline.