The People, Respondent,v.Dwight Giles, Appellant.BriefN.Y.November 19, 2014To be argued by JANHOTH (15 Minutes Reguested) Geourt of §ppeals 6tate of Jletu ~ork THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- APL-2013-00219 DWIGHT GILES, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT JANHOTH jhoth@cfal.org Of Counsel December 6, 2013 ROBERTS. DEAN Attorney for Defendant-Appellant CENTER FOR APPELLATE LITIGATION 7 4 Trinity Place New York, NY 10006 Tel: (212) 577-2523 Fax: (212) 577-2535 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . m PRELIMINARY STATEMENT .................................... 1 QUESTIONS PRESENTED ...................................... 3 STATUTES INVOLVED ......................................... 3 SUMMARY OF ARGUMENT ..................................... 6 STATEMENT OF FACTS ....................................... 10 The First Trial ............................................. 10 Persistent Felony Offender Hearing ........................... 12 Direct Appeal ............................................. 13 The Resentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Second Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 The People's Case .................................... 15 The Defense Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People's Rebuttal Case ................................ 22 Summations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Deliberations and Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Appellant's § 330.30 Motion ................................. 23 Apprendi Objection ........................................ 24 Sentencing and Persistent Felony Offender Hearing .............. 25 i Appeal to the Appellate Division, First Department . . . . . . . . . . . . . . 28 ARGUMENT POINT I APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CAN BE CONSIDERED ON DIRECT APPEAL WHERE, PURSUANT TO C.P.L. § 330.30, THE ISSUE WAS FULLY LITIGATED BELOW, A FULL FACTUAL RECORD WAS CREATED, AND THE TRIAL COURT ADDRESSED THE MERITS OF THE CLAIM .......... 29 A. This Court's Review is Limited to the Merits of Appellant's Claim .................................... 30 B. In Any Event, Appellant's Motion was not Procedurally Defective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 C. Counsel Provided Less than Effective Representation . . . . . . . 39 POINT II APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A JURY TRIAL AND DUE PROCESS WHEN HIS SENTENCE WAS ENHANCED BEYOND THE OTHERWISE APPLICABLE MAXIMUM TERM BASED ON FACTS FOUND BY AJUDGEANDNOTBY AJURYBEYOND A REASONABLE DOUBT. U.S. CONST., AMENDS. VI, XIV; N.Y. CONST., ART. I,§§ 2, 6 ..................... 46 CONCLUSION ................................................ 54 ii TABLE OF AUTHORITIES FEDERAL CASES Apprendi v. New Jersey, 530 U.S. 466 (2000) ......................................................................................... passim Blakely v. Washington, 542 U.S. 296 (2004) .............................................................................. 46, 47, 48,49 Coleman v. Thompson, 501 U.S. 722 (1991) ................................................................................................. 37 Cunningham v. California, 549 U.S. 270 (2007) .................................................................................... 48, 49, 52 Martinez v. Ryan, _U.S._; 132 S.Ct. 1309 (2012) .......................................................... 9, 37, 38,39 Pennsylvania v. Finely, 481 U.S. 551 (1987) ................................................................................................. 37 Rompilla v. Beard, 545 U.S. 374 (2005) ................................................................................................. 41 Southern Union Co. v. United States, _ U.S._, 132 S.Ct. 2344 (2012) ...................................................... 10, 50, 51, 52 Strickland v. Washington, 466 us 668 [1984] ............................................................................................ 28, 40 United States ex rel. Graham v. Mancusi, 457 F.2d 463 (2d Cir. 1972) ................................................................................... 39 STATE CASES People v. Adams, 82 N.Y.2d 773 (1993) .............................................................................................. 38 111 People v. Ai Jiang, 62 A.D.3d 515 [2009] ....................................................................................... 28, 38 People v. Baldi, 54 N.Y.2d 137 (1981) .............................................................................................. 40 People v. Bartley, 298 A.D.2d 160 (1st Dep't 2002) .......................................................................... 36 People v. Battles, 16 N.Y.3d 54 (2010) ................................................................................... 10, 29, 49 People v. Benevento, 91 NY2d 708 [1998] ......................................................................................... 28, 40 People v. Bornholdt, 33 N.Y.2d 75(1973) ................................................................................................ 43 People v. Brock, 332 N .Y.S.2d 110 (1st Dep't 1972) ....................................................................... 38 People v. Bussey, 6 A.D.3d 621 (2d Dep't 2004) ............................................................................... 35 People v. Caban, 5 N.Y.3d 143 (2005) ................................................................................................ 41 People v. Carter, 63 N.Y.2d 530 (1984) ....................................................................................... 33, 34 People v. Carthens, 171 A.D.2d 387 (1st Dep't 1991) .......................................................................... 33 People v. Concepcion, 17 N.Y.3d 192 (2011) ......................................................................................... 9, 31 People v. Deblinger, 179 Misc.2d 35 (Sup. Ct., Kings Cty.1998) .......................................................... 36 iv People v. Droz, 39 N.Y.2d 457 (1976) .............................................................................................. 41 People v. Evans, 16 N.Y.3d 571 (2011) .............................................................................................. 38 People v. Everson, 100 N.Y.2d 609 (2003) ........................................................................................... 34 People v. Flores, 84 N.Y.2d 184 (1994) .............................................................................................. 41 People v. Fuentes, 12 N.Y.3d 259 (2009) .............................................................................................. 32 People v. Giles, 11 N.Y.3d 495 (2008) ...................................................................................... passim People v. Giles, 47 A.D.3d 88 (1st Dep't 2007) .............................................................................. 13 People v. Giles, 95 A.D.3d 670 (1st Dep't 2012) ................................................................. 1, 28, 30 People v. Hobot, 84 N.Y.2d 1021 (1995) ........................................................................................... 41 People v. Jackson, 78 N.Y.2d 638 (1991) .............................................................................................. 33 People v. LaFontaine, 92 N.Y.2d 470 (1998) ................................................................................... 9, 31,32 People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ............................... 28 People v. Quinones, 12 N.Y.3d 116 (2009) ....................................................................................... 49, 50 v People v. Rincon, 62 A.D.3d 574 (1st Dep't 2009) ............................................................................ 38 People v. Rivera, 5 N.Y.3d 61 (2005) ..................................................................................... 49, 50, 51 People v. Rivera, 71 N.Y.2d 705, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ................................ 28 People v. Rosen, 96 N.Y.2d 329 (2001) .............................................................................................. 49 People v. Schmidt, 216 N.Y. 324 (1915) ................................................................................................ 33 People v. Simmons, 100 A.D.3d 809 (2d Dep't 2012) ........................................................................... 37 People v. Toland, 2 A.D.3d 1053 (3d Dep't 2003) ............................................................................. 36 People v. Turner, 5 N.Y.3d 476 (2005) ......................................................................................... 10, 43 People v. Ventura, 66 N.Y.2d 693 (1985) .............................................................................................. 34 People v. Washington, 184 A.D.2d 451 (1st Dep't 1992) .......................................................................... 36 People v. Williams, 342 N.Y.S.2d 75 (2d Dep't 1973) .......................................................................... 38 People v. Wolf, 98 N.Y.2d 105 (2002) .............................................................................................. 33 People v. Yusef, 19 N.Y.3d 314 (2012) ................................................................................... 9, 31,32 vi CONSTITUTIONS N.Y. Const., art. I,§ 2 .............................................................................. 2, 3, 46, 47 N.Y. Const .. , art. I,§ 6 ............................................................................. 2, 3, 46, 47 U.S. Const., amend. VI ............................................................................ 2, 3, 46, 47 U.S. Const., amend. XIV ........................................................................ 2, 3, 46, 47 Statutes C.P.L. § 330.30 ................................................................................................. passim C.P.L. § 380.50 ......................................................................................................... 51 C.P.L. § 400.20 ........................................................................................ 4, 12, 46, 49 C.P.L. § 440.10 ................................................................................................. passim C.P .L. § 450.15(1) .................................................................................................... 38 C.P.L. § 450.90(1) ..................................................................................................... 2 C.P.L. § 460.15(1) .................................................................................................... 38 C.P.L. § 470.15(1) ..................................................................................... 2, 8, 31, 32 C.P.L. § 470.35(1) .................................................................................... 2, 9, 31, 32 C.P.L.R. § 5526 ................................................................................................... 9, 34 Penal Law§ 140.25 .................................................................................................. 1 Penal Law § 140.35 .................................................................................................... 1 Penal Law § 165.45(2) ............................................................................................... 2 Penal Law § 70.10 ................................................................................ 4, 5, 6, 46, 49 vii REGULATIONS 22 N.Y.C.R.R. 600.10(b)(1)(iii) ......................................................................... 9, 34 MISCELLANEOUS Preiser, Practice Commentaries to C.P.L. § 380.50 ........................................... 51 Vlll COURT OF APPEALS STATE OF NEW YORK. --------------------------------------------------------------------------------){ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DWIGHT GILES, Defendant-Appellant. --------------------------------------------------------------------------------){ PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted August 6, 2013 (A. 1 ), 1 appellant appeals from an order of the Appellate Division, First Department, entered May 22, 2012 (A. 3), affirming, with opinion, a judgment of Supreme Court, New York County, rendered August 18, 2009, convicting appellant of attempted burglary in the second degree (Penal Law§§ 110/140.25) and possession ofburglar's tools (Penal Law§ 140.35), and modifying his aggregate sentence to an aggregate term of 15 years to life (Berkman, J., at trial, persistent felony hearing, and sentence). See People v. Giles, 95 A.D.3d 670 (1st Dep't 2012). 1 Numbers in parentheses preceded by "A" refer to pages in the accompanying Appendix. Witness names are provided where necessary for clarification. The Order was corrected on August 23,2013 (A. 2). 1 By that same order, the Appellate Division, First Department, modified a judgment of the Supreme Court, New York County, rendered January 27,2009, resentencing appellant, as a persistent felony offender, to concurrent sentences of 20 years to life imprisonment on two counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45(2), by reducing the sentences to concurrent terms of 15 years to life imprisonment (Solomon,]., at persistent felony hearing and resentencing). This Court has jurisdiction, pursuant to New York Criminal Procedure Law Section 450. 90(1 ), to entertain this appeal and to review the questions raised. The question of whether a claim of ineffective assistance, adjudicated in a C.P.L. § 330.30 motion, may be reviewed on direct appeal, and the related issue, that C.P.L. §§ 470.15(1) and 470.35 bar this Court from reviewing that claim, both present questions of law as they concern this Court's reviewability powers. The constitutional challenge to New York's persistent felony offender statute presents an issue of law reviewable in this Court because appellant properly preserved that exact issue in the trial court by timely objection on these precise grounds. On September 12,2013, the Court granted appellant's motion for leave to appeal as a poor person on the original record and assigned Robert S. Dean, Center for Appellate Litigation, as counsel. 2 Appellant 1s currently incarcerated pursuant to the judgment herein appealed. Point I QUESTIONS PRESENTED 1. Whether the merits of appellant's claim of ineffective assistance of trial counsel can be considered on direct appeal where, pursuant to C.P.L. § 330.30, the issue was fully litigated below, a full factual record was created, and the trial court addressed the merits of the claim. 2. Whether appellant was deprived of his constitutional rights to a jury trial and due process when his sentence was enhanced beyond the otherwise applicable maximum term based on facts found by a judge and not by a jury beyond a reasonable doubt. U.S. Const., amends. VI, XIV; N.Y. Const., art. I, §§ 2, 6. STATUTES INVOLVED C.P.L. § 330.30 Motion to set aside verdict; grounds for At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds: 1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court. 3 Point II C.P.L. § 400.20 Procedure for determining whether defendant should be sentenced as a persistent felony offender. 1. Applicability. The provisions of this section govern the procedure that must be followed in order to impose the persistent felony offender sentence authorized by subdivision two of section 70.10 of the penal law. Such sentence may not be imposed unless, based upon evidence in the record of a hearing held pursuant to this section, 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. 2. Authorization for hearing. When information available to the court prior to sentencing indicates that the defendant is a persistent felony offender, and when, in the opinion of the court, the available information shows that a persistent felony offender sentence may be warranted, the court may order a hearing to determine (a) whether the defendant is in fact a persistent felony offender, and (b) if so, whether a persistent felony offender sentence should be imposed. 3. Order directing a hearing. An order directing a hearing to determine whether the defendant should be sentenced as a persistent felony offender must be ftled with the clerk of the court and must specify a date for the hearing not less than twenty days from the date the order is ftled. The court must annex to and file with the order a statement setting forth the following: (a) The dates and places of the previous convictions which render the defendant a persistent felony offender as defined in subdivision one of section 70.10 of the penal law; and (b) The factors in the defendant's background and prior criminal conduct which the court deems relevant for the purpose of sentencing the defendant as a persistent felony offender. 4. Notice of hearing. Upon receipt of the order and statement of the court, the clerk of the court must send a notice of hearing to the defendant, his counsel and the district attorney. Such notice must specify the time and place of the hearing and the fact that the purpose of the hearing is to determine whether or not the defendant should be sentenced as a persistent felony offender. Each notice required to be sent hereunder must be accompanied by a copy of the statement of the court. 4 5. Burden and standard of proof; evidence. Upon any hearing held pursuant to this section the burden of proof is upon the people. A finding that the defendant is a persistent felony offender, as defined in subdivision one of section 70.10 of the penal law, must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to the trial of the issue of guilt. Matters 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. 6. Constitutionality of prior convictions. A previous conviction in this or any other jurisdiction which was obtained in violation of the rights of the defendant under the applicable provisions of the Constitution of the United States may not be counted in determining whether the defendant is a persistent felony offender. The defendant may, at any time during the course of the hearing hereunder controvert an allegation with respect to such conviction in the statement of the court on the grounds that the conviction was unconstitutionally obtained. Failure to challenge the previous conviction in the manner provided herein constitutes a waiver on the part of the defendant of any allegation of unconstitutionality unless good cause be shown for such failure to make timely challenge. 7. Preliminary examination. When the defendant appears for the hearing the court must ask him whether he wishes to controvert any allegation made in the statement prepared by the court, and whether he wishes to present evidence on the issue of whether he is a persistent felony offender or on the question of his background and criminal conduct. If the defendant wishes to controvert any allegation in the statement of the court, he must specify the particular allegation or allegations he wishes to controvert. If he wishes to present evidence in his own behalf, he must specify the nature of such evidence. Uncontroverted allegations in the statement of the court are deemed evidence in the record 8. Cases where further hearing is not required. Where the uncontroverted allegations in the statement of the court are sufficient to support a finding that the defendant is a persistent felony offender and the court is satisfied that (a) the uncontroverted allegations with respect to the defendant's background and the nature of his prior criminal conduct warrant sentencing the defendant as a persistent felony offender, and (b) the defendant either has no relevant evidence to present or the facts which could be established through the evidence offered by the defendant would not affect the court's decision, the court may enter a finding that the defendant is a persistent felony offender and sentence 5 him in accordance with the provisions of subdivision two of section 70.10 of the penal law. 9. Cases where further hearing is required. Where the defendant controverts an allegation in the statement of the court and the uncontroverted allegations in such statement are not sufficient to support a finding that the defendant is a persistent felony offender as defined in subdivision one of section 70.10 of the penal law, or where the uncontroverted allegations with respect to the defendant's history and the nature of his prior criminal conduct do not warrant sentencing him as a persistent felony offender, or where the defendant has offered to present evidence to establish facts that would affect the court's decision on the question of whether a persistent felony offender sentence is warranted, the court may fix a date for a further hearing. Such hearing shall be before the court without a jury and either party may introduce evidence with respect to the controverted allegations or any other matter relevant to the issue of whether or not the defendant should be sentenced as a persistent felony offender. At the conclusion of the hearing the court must make a finding as to whether or not the defendant is a persistent felony offender and, upon a finding that he is such, must then make such findings of fact as it deems relevant to the question of whether a persistent felony offender sentence is warranted. If the court both finds that the defendant is a persistent felony offender and is of the opinion that a persistent felony offender sentence is warranted, it may sentence the defendant in accordance with the provisions of subdivision two of section 70.10 of the penal law. 10. Termination of hearing. At any time during the pendency of a hearing pursuant to this section, the court may, in its discretion, terminate the hearing without making any finding. In such case, unless the court recommences the proceedings and makes the necessary findings, the defendant may not be sentenced as a persistent felony offender. SUMMARY OF ARGUMENT Under New York County indictment number 6804/01, appellant Dwight Giles was accused of attempted second-degree burglary and possession of stolen property and burglar's tools based on allegations that, at about 12:45 a.m., on November 7, 2001, officers observed him trying to open a locked door with a 6 knife. At the time of his arrest, appellant possessed a stolen credit card and a Metrocard purchased with a stolen credit card. In 2004, appellant was convicted of all counts after a jury trial. At this trial, a maintenance worker testified that, when he arrived at work on the morning of November 7, 2001, he saw one scratch on the lock. A defense investigator testified that he looked at the lock within days of the incident and did not see any scratches at all. Appellant was sentenced after trial as a persistent felony offender to concurrent terms of 20 years to life on all of the felony counts. This Court reversed the burglary-related convictions based on the trial court's failure to properly instruct the jury on the limited purpose of Molineux evidence. The Court ordered resentencing on the stolen property counts. At resentencing, the original sentencing judge refused to alter the persistent felony offender sentence. At the second trial, the prosecution relied heavily on the testimony of the same maintenance worker who had testified at the first trial to establish that appellant had attempted to pick the lock with a knife. However, in contrast to his testimony at the first trial that he saw a single scratch, the maintenance worker stated that he observed three large scratches on the lock on November 7th. Counsel did not impeach him with his prior inconsistent testimony. Further, counsel did not call the investigator to testify that he did not see any scratches. 7 Following his conviction, appellant, joined by newly appointed counsel, moved, pursuant to C.P.L. § 330.30, to set aside his conviction arguing that, among other things, trial counsel had provided ineffective assistance of counsel by failing to call the defense investigator as a witness. The trial assistant opposed the motion and attached an affidavit from trial counsel wherein he attempted to explain his reasons for not calling the investigator. The trial court, finding counsel's explanation "credible," denied the motion. Over a constitutional objection, the court sentenced appellant as a persistent felony offender to a term of 20 years to life. On appeal, the Appellate Division found appellant's claim of ineffective assistance of counsel based on counsel's failure to call the defense investigator "procedurally defective." Appellant's claim that counsel was ineffective for not impeaching the prosecution's witness with his prior inconsistent statement that the lock had only a single scratch was dismissed as improperly raised on direct appeal in that it involved matters of strategy not reflected in the record. In Point I, appellant argues that the Appellate Division erred in concluding that his ineffective assistance of counsel claims were procedurally defective. Initially, only the merits of the appellant's claim that counsel was ineffective for failing to call the defense investigator is before this Court for review as that was the sole basis for the trial court's adverse ruling. See C.P.L. §§ 470.15(1), 8 470.35(1); Peoplev. Concepcion, 17 N.Y.3d 192 (2011); Peoplev. LaFontaine, 92 N.Y.2d 470 (1998); People v. Yusef, 19 N.Y.3d 314, 321 (2012). The Appellate Division erred in reaching the alternate ground of procedural defectiveness, and this Court may not do so now. Alternatively, appellant's claims of ineffective assistance may be reviewed on direct appeal. Although a motion brought pursuant to C.P.L. § 330.30 is limited to grounds which appear "in the record," the ineffectiveness claim as to the failure to call the investigator was fully litigated below. Counsel provided his reasons for failing to call the investigator and the court addressed the merits of the claim. Proceedings which occur post-verdict, but pre-sentencing, are clearly part of the record on appeal. See C.P.L.R. § 5526;22 N.Y.C.R.R. 600.10(b)(1)(iii). There is no basis for ignoring that record and forcing appellant to bring a C.P.L. § 440.10 motion based on the same allegations and factual record. To the contrary, there are sound policy reasons for allowing him to litigate his claim of ineffectiveness of counsel in a 330.30 motion. First, unlike typical errors oflaw raised on appeal, appellant's claim of ineffectiveness could not have been preserved pre-verdict as counsel could hardly be expected to have complained about his own representation. Second, although a criminal defendant needs the effective assistance of counsel on a collateral claim complaining of trial counsel's effectiveness, see Martinez v. Ryan,,_ U.S._; 132 S.Ct. 1309, 1317 (2012), he 9 is not entitled to the aid of an attorney at all. Appellant's claim raises a ground appearing on the record which requires reversal as a matter oflaw, and thus, was reviewable on direct appeal. As for the failure to impeach a state's witness with his prior inconsistent testimony, there was no possible strategic reason for failing to impeach this witness. Under these circumstances, it is appropriate for this Court to review the ineffectiveness claim on direct appeal. See People v. Turner, 5 N.Y.3d 476 (2005) (finding appellate counsel ineffective for failing to raise on direct appeal ineffective assistance of trial counsel claim where trial attorney had no strategic reason for failing to raise meritorious defense to submission of lesser). In Point II, appellant challenges, on constitutional grounds, his sentence as a persistent felony offender, and asks that this Court reconsider its decision in People v. Battles, 16 N.Y.3d 54 (2010) et.a!., in light of the recent decision of the United States Supreme Courtin Southern Union Co. v. United States,_ U.S. _ _ , 132 S.Ct. 2344 (2012). STATEMENT OF FACTS The First Trial Appellant Dwight Giles' first trial occurred in September 2002. The evidence at the first trial established the following: 10 On November 7, 2001, at approximately 1:00 a.m., two New York City police officers patrolling in a marked car in the Upper West Side of Manhattan observed defendant Dwight Giles standing in a doorway of a medical office "poking" at the lock with a pocketknife. When the officers confronted defendant, he fled and was apprehended after a brief chase. In response to an officer's question as to what he was doing at the door, the record indicates that defendant said, "what door?" After a search of defendant's person, the police recovered a folding knife, a wallet, a Visa card bearing the name of Frank Ballabio, a MetroCard and some other items. Inspection of the door and lock revealed fresh scratch marks. People v. Giles, 11 N.Y.3d 495,496-97 (2008). Other evidence showed: the Visa card was taken during a home burglary and the Metro-Card was purchased with a credit card stolen during a second home burglary. Id. at 497. Although appellant was never charged with committing either burglary, the People were allowed to introduce extensive testimony concerning the home burglaries. Id. at 497-98. In addition, to establish recent damage to the lock, the People called Jesus Vargas, who worked as a maintenance worker at the relevant Upper West Side building (A. 7-25). He testified that, on November 7, 2001, he was asked to inspect the door for any damage (A. 22). He observed "part of the buzzer was kind of scratched and you could tell it was a new scratch because it was dirty and the scratch was freshly made" (id.). The prosecutor then asked him to indicate 11 on a photograph of the lock "where the new scratch was that you saw," which Vargas did (id.). Vargas did not testify that he had changed the lock within a month prior to November 7th. The defense called an investigator, Franklin Belle, to testify (A. 26-54). On November 9, 2001, he inspected the lock (A. 29). He "saw a lock that didn't appear to have been scratched in any way" (A. 33). He also looked "above and around" the lock and "saw no scratches" (A. 34). Belle took photographs of the lock, but acknowledged that the "close up" photo of the lock was "blurry" (A. 31- 32). Persistent Felony Offender Hearing Following appellant's conviction, the prosecution filed a statement, pursuant to C.P.L. § 400.20, asserting that appellant was a persistent felony offender (A. 55-73). Approximately one month later, the trial court filed its own statement (A. 74-77), and ordered a persistent felony hearing (A. 78). On March 24, 2003, the court held a persistent felony offender hearing (A. 79-154). The People argued that appellant's past criminal conduct and his "history and character" demonstrated that he could not be rehabilitated (A. 100- 22). Victoria Vaughn testified on appellant's behalf(A. 132-46). She had known appellant for about 30 years. They met when they were teenagers (A. 134). They 12 began a romantic relationship when she was 21 and were together romantically during the times he was not in prison (A. 139). Appellant had a hard childhood. He came from a very large family, 12 or 13 children, and he got "lost in the mix" (id.). Appellant was not a violent individual (A. 135). Appellant cared for all of her five children, even though only two of them were his biological children (A. 140-41). He tried to teach them right from wrong and they were "raised right." All of the children were upstanding citizens and either employed or in school (A. 134-35, 137-38). The two biological children were in court at the hearing. Despite appellant's past terms of incarceration, he kept in contact with his children (A. 135-36). After he was released from prison, he spent quality time with his biological children (A. 136). She believed that appellant was redeemable if he received some help and could rely upon his artistic skills in the future (A. 135). The court sentenced appellant, over constitutional objections, as a persistent felony offender to concurrent terms of 20 years to life on all of the felony counts (A. 153-54). Direct Appeal On appeal, the Appellate Division, First Department affirmed appellant's conviction over a two-judge dissent. People v. Giles, 47 A.D.3d 88 (1st Dep't 2007). This Court modified the judgment by reversing the attempted burglary and 13 possession of burglar's tools convictions and ordering a new trial on those counts because the trial court had failed to provide a limiting instruction to cure the potential prejudicial effect of Molineux evidence concerning uncharged home burglaries. Giles, 11 N.Y.3d at 499-500. The Court afflrmed the stolen property counts, but ordered resentencing on those counts. Id. at 500. Because it had ordered resentencing, the Court did not "reach the issue [of] whether the imposition of a persistent felony offender sentence unconstitutionally enhances defendant's sentence." Id. The Resentencing At a court date on January 16,2009, before the original sentencing court, defense counsel asked for a reduced sentence of two to four years on the stolen property counts (A. 161). The court stated that it did not intend to reconsider its prior exercise of discretion in sentencing appellant as a persistent felony offender (A. 159). It stated, "He's a burglar. That is what he does. I found him to be someone who deserves a life sentence" (id.). It stated that, in light of this Court's decision requesting that the court consider resentencing, the court had "considered" it and the "best" that it would do would be to reduce the sentence to 15 years to life (A. 165-66). Counsel believed that such a sentence would be "incredibly disproportionate" on an E felony (A. 167-68). The court invited the defense to appeal the sentence (id.). 14 At resentencing on January 27, 2009, defense counsel asked that the sentences be vacated and held in abeyance until the end of the second trial (A. 17 6). The court rejected the request, and stated that, if it resentenced appellant, it would only potentially consider a reduction in the sentence to 15 years to life (A. 177 -78). The prosecutor suggested that the court simply enter a new "finding" that its prior exercise of discretion was appropriate and confirm that the prior sentence of 20 years to life remain in place (A. 180-81). The court agreed, finding that the "defendant was properly sentenced, in my judgment, under 165.45, E felonies, to 20 years to life, as a persistent felony offender," relying upon the record that was made at the original persistent felony offender hearing (A. 181-82). Counsel challenged the sentence as unconstitutional under "Apprendi, Blakely, Cunningham, all United States jurisprudence" (A. 182). Counsel also argued that it constituted cruel and unusual punishment since it was "a disproportionate sentence" (id.). The court conf:u:med that these claims were "preserved" (id.). The Second Trial The People's Case At approximately 12:45 a.m. on November 7, 2001, Officer Francisco Valverde was driving his sergeant, Donald Dermody,2 south down Central Park 2 At the time of the second trial, Dermody had retired (Dermody: A. 294). 15 West as they inspected subway entrances (Valverde: A. 206-07, 212; Dermody: A. 298). As Valverde drove towards the crosswalk on the south side of 86th Street, he observed from about five car lengths away a man at the entrance to 255 Central Park West (Valverde: A. 218, 263). This entrance was a single door into a medical office in the same building as, and just to the south of, the entrance to 257 Central Park West, a residential building (Valverde: A. 218, 223024). Valverde shifted lanes and drove up towards towards the door. He saw the man make "poking" or "sawing" movements in a downward direction towards the lock on the door with a shiny object in his right hand (Valverde: A. 219, 224, 226-27). Dermody also observed the man in the doorway, but he did not see the man until Valverde had stopped the car in the bus lane (Dermody: A. 298). Dermody testified that the man had his back to them and his left shoulder was leaning against the door. His right hand was near the lock and handle of the door (id.). Dermody could only see his forearm and the top of his hand, but they were moving in a back and forth motion. It appeared as if he had something in his hand (Dermody: A. 302-04). Valverde moved his car almost parallel to the man to get a better look. According to Valverde, Dermody said, "Look at this guy" (Valverde: A. 219). Dermody testified that he did not say this, but instead asked Valverde whether he saw the man at the door and Valverde stated that he did (Dermody: A. 298-99). 16 Valverde testified that Dermody yelled "Excuse me" towards the man. The man turned around, looked in their direction, and turned back to the door. He stopped the poking motion towards the door and began to "close" the shiny object, which Valverde could now tell was a knife, as he slipped it into his pocket 01alverde: A. 220,228-29, 257, 270). According to Dermody, the man turned and looked in their direction before Dermody said anything to him. It was at that point that Dermody decided to ask him what he was doing (Dermody: A. 298-99). Dermody testified that the area was "amply lit" (Dermody: A. 313-14). Overall, Dermody only saw the man at the door for a few seconds, 10 to 12 at the most (Dermody: A. 314-15). The man began walking away from the door. Dermody yelled "Excuse me" and the man started running north up Central Park West 01 alverde: A. 220- 21; Dermody: A. 299). Dermody got out of the car and chased him towards a subway entrance 01 alverde: A. 221; Dermody: A. 296-06). Dermody told the man to stop but he ran down into the subway station at 86th Street (Dermody: A. 299, 308). The man made a sharp left turn at the bottom of the stairs and ran towards a different set of stairs. Dermody pulled out his gun and told him to stop. The man stopped at the top of the stairs (Dermody: A. 299, 308). Meanwhile, Valverde did a U turn and drove over to a different subway entrance. He got out of the car and went down the stairs. When he got to the 17 station, he saw an individual, who he identified as appellant Dwight Giles, laying on the ground being held at gunpoint by Dermody (Valverde: A. 221). They picked appellant up and put him in handcuffs (id.). Valverde asked appellant what he was doing at the door and appellant replied, "What door?" (Valverde: A. 248). Valverde searched appellant and found a knife in his right front pants pocket, a cell phone and a magnifying glass (Valverde: A. 238-40). Michael Guglielmoni, who was a detective at the time of the incident but had since retired, recovered a Metrocard from appellant's wallet at the precinct (Guglielmoni: A. 288). During pedigree questioning, appellant gave his address as 2738 Seventh Avenue (Valverde: A. 246). Hung Leong, a specialist at New York City Transit, obtained the data for the Metrocard. It showed that the card was used once at 12:24 a.m. on November 7, 2001, at 135th Street and St. Nicholas, a stop for the Band C train (Leong: A. 319-25). Valverde later went back to the door to look at the lock. While Valverde insisted that it was not dark near the door, he admitted that he used a flashlight to inspect the lock (Valverde: A. 242, 266). He noticed multiple "fresh scratches," which he described as a "little shinier" than the area around them (Valverde: A. 241-42, 272). Valverde inspected the knife and said that one of the blades had scratches on it (Valverde: A. 256). Valverde testified that, during his observations of appellant at the door, he saw some of the blade inside the door (Valverde: A. 18 259). He acknowledged that he did not see appellant try and open the door ryalverde: A. 274). In November 2001, Jesus Vargas worked as a maintenance worker at Central Park West Medical (A. 327). The office had two addresses: the main entrance at 2 West 86th Street and a side entrance at 255 Central Park West (A. 328). The door at 255 had two locks, both were kept locked. Patients had to buzz to get in (A. 332, 334). A resident from 257 could enter into the medical offices through an emergency door in the basement of the building (A. 348-49). On November 6, 2001, Vargas worked until 3:00p.m. He cleaned the locks on 255 before he left. That door was locked when he left. Appellant did not have permission to enter the medical offices (A. 335-37). When he came to work on November 7, 2001, he was told that something happened the night before. He looked at the door and saw "scratches, deep scratches" on the top lock (A. 340-41). In contrast to his testimony at the prior proceeding, Vargas testified that he saw three scratches: one on the plate on the door, which was about two to three inches long; and two on the lock, each of which were about an inch long (A. 341-42, 349-50). Counsel did not impeach Vargas with his prior testimony that he only saw one scratch. Vargas testified that he had changed the lock on the door about a month 19 before the incident (A. 342-43). He cleaned the lock every day before November 7th and did not notice any scratches (A. 343-44). Vargas did not remember whether he had testified at the prior proceeding that he had changed the lock (A. 345). Counsel attempted to refresh Vargas's recollection as to whether he had mentioned this in his prior testimony. The prosecutor's Bornholdt objection was sustained (A. 351). The Defense Case Appellant Dwight Giles testified in his own behalf and admitted that he had been convicted of six felonies: one in 1980 in Onondaga County; one in 1981 in New York County; one in 1991 in Onondaga County; one in 1992 in New York County; and two "in 2003 here in New York County ... out of one incident" (A. 392-94). He further admitted that he had previously used three different aliases (A. 393-94). In November 2001, he was living in various hotels and working off the books (A. 365-66,379, 381). At 1:00 a.m. on November 7, 2001, he was standing near 86th and Central Park West. He had made plans to meet a woman who lived in the building. They were going to go across the street and smoke marijuana in Central Park. He could not remember the woman's name (A. 367, 373-75). The woman had called him about 4 5 minutes earlier to make the arrangement (A. 3 7 6). He was at Victoria Vaughan's house when he received the call (A. 381). 20 While appellant was looking through his cell phone contacts to obtain the woman's number, he observed a police officer, who he believed was probably Dermody, drive up alone in a car (A. 368-70). The officer leaned across the front seat and said "excuse me" to appellant, who had his back to the officer. Appellant turned around and looked at the officer, who told him to come to the car (A. 369, 391). Appellant walked away from the officer and went down into the subway station. He saw the officer back up his car towards the subway station. Once inside the station, appellant went up a different staircase (A. 369- 70, 372). When he arrived at the top of the stairs, he saw the officer stop his car at the top of the staircase. The officer got out of his car, pointed his gun at appellant and told him to stop (A. 370). Appellant had seen other backup police cars arrive when he reached the top of the stairs. Officer Valverde was in one of those cars (A. 370). Appellant testified that he was not doing anything with his knife to the door (A. 3 71, 3 7 3). Appellant explained that he had walked away from the officer because he had marijuana in his possession and wanted to hide it in his boots while down in the subway station (A. 410, 416). Appellant acknowledged that he had come down on the subway from 135th and St. Nicholas; however, he had used a token, not the metrocard admitted into evidence (A. 374, 415). The magnifying glass and metrocard were not his. They were found inside a bag that 21 was sitting on the staircase next to where he had been stopped (A. 410, 414-18). Appellant admitted that he had a knife at the time of his arrest, but he would not specifically acknowledge that the knife in evidence was his (A. 410-12). People's Rebuttal Case The records for the cell phone3 found on appellant were admitted through Terry Rivera, a custodian of records at T-Mobile (A. 427). These records show that calls had been made and received on the phone from October 15,2001, until November 7, 2001 (A. 430). The last call made or received on the phone prior to the incident was 10:44 p.m. on November 6th (A. 432). I twas an outgoing call (A. 433). The last incoming call on the phone that did not go to voicemail was at 6:36p.m. on November 6 (A. 434). Summations In summation, counsel focused primarily on two arguments: (1) appellant did not take enough steps to come "dangerously close" to committing an attempted burglary; and (2) the officers were mistaken about what they saw at the door (A. 439-42). With respect to the first argument, counsel inquired whether a knife could have even worked to open the door and, in any event, the scratches on the door were "small" (A. 441-42). 3 The phone was registered under the name John Stolks, who was listed with the same birthdate as appellant (A. 430). There was no allegation at trial that the phone had been stolen. It was the People's theory that the phone belonged to appellant (A. 455). 22 In response, the prosecutor stated, "The evidence is crystal clear" (A. 444). According to the prosecutor, there were "fresh scratches" on the door and around the lock, which corroborated the officers' testimony (A. 448, 452-53, 463). The prosecutor opined to the jury how she believed appellant was attempting to pick the lock with the knife. She stated that, in his testimony, Vargas "point[ ed] out there [was] also a scratch on the other side which you could barely see the edge of when you open the door, that inner edge that is hidden when the door is closed. That explains where you would expect a knife to go you would snap the spring, jimmy open the lock, pry that spring that was scratched too." The prosecutor also pointed out that the jury would be able to see a scratch on the lock in one of the People's photos (A. 448). Deliberations and Verdict During deliberations, the jury asked for a readback of Vargas' testimony about "the scratches" (A. 516). After hearing the read back, the jury convicted appellant of attempted burglary in the second degree and possession of burglars tools (A. 517-18). Appellant's § 330.30 Motion After the verdict, appellant moved, pro se, for the reassignment of counsel (A. 523). In the motion, appellant alleged that, among other things, counsel had unjustifiably refused to call the defense investigator, Franklin Belle, who had 23 testified at the first trial (id.). The reassignment motion was granted. New counsel flled a motion, pursuant to C.P.L. § 330.30, on the ground of ineffective assistance of counsel that incorporated the allegations raised in the reassignment motion (A. 527, 528 at ,-r 3). In response, the People contended that appellant's claim was not properly raised in 330.30 motion because it relied on matters outside the record (A. 530 at ,-r 4). The prosecution noted that it would, therefore, treat the motion as a pre- mature C.P.L. §440.10 motion (A. 531 at ,-r 5). In contesting the ineffective assistance claim on the merits, the prosecutor attached an affidavit from trial counsel (A. 558). In his affirmation, trial counsel stated that he did not call the defense investigator because he had assessed the investigator's prior testimony and believed that the investigator's blurry photograph of the lock undermined his credibility (A. 564-65 at ,-r,-r 45-46). Apprendi Objection Prior to sentencing, the People moved to have appellant sentenced as a persistent felony offender and flled a memorandum in support of the request (A. 583). Counsel objected in writing, arguing that the persistent felony offender statute was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) (A. 592). He added that appellant's history, character and the nature of his criminal conduct did not support an enhanced sentence (id.). 24 Sentencing and Persistent Felony Offender Hearing At sentencing on August 18, 2009, the court denied the 330.30 motion. As to the claim that counsel was ineffective for failing to call the investigator, the court concluded that no hearing was necessary on that claim since counsel's explanation for failing to call the witness was "a credible explanation from a credible respective [sic] member of the bar" (A. 599). The court then held a persistent felony offender hearing. Counsel repeated his constitutional objection to the imposition of an enhanced sentence under Apprendi (A. 603, 628-29). The court overruled the objection (A. 603-04). After the prosecutor submitted the certificates of disposition for appellant's prior felony convictions, the court found that appellant was a persistent felony offender (A. 605-06, 613). The prosecutor argued that, based on appellant's history and character and the nature of his criminal conduct, extended incarceration would best serve the public interest (A. 613). She asserted that appellant had not abandoned his disrespect for the law and, if released, would continue his criminal ways (A. 614). She claimed that appellant had lied under oath at trial and had exhibited poor behavior while incarcerated (id.). The prosecutor stated that appellant was 50 years old and had engaged in a continuing and systematic course of criminal conduct over the past 30 years that had not abated (A. 614). He had been incarcerated, a fugitive, or on parole for 25 more than two thirds of the past 30 years (id.). He also was arrested soon after each time he was released from custody (A. 621). He had a long history of drug abuse (id.). The prosecutor reviewed some of his criminal conduct. In one burglary conviction, appellant was found inside a ransacked apartment. In that case, appellant claimed that he followed a friend into the building and had nothing to do with the robbery. Another burglary conviction was based on allegations that, in the afternoon hours, appellant broke into an occupied home, but fled once the occupants confronted him. The next burglary conviction was based on allegations that the victim saw appellant enter a basement door in her building in Queens at 10:24 a.m. This conviction was reduced on appeal to a criminal trespass (A. 616-18). In another burglary, appellant was seen inside a law office (A. 620). The prosecutor contended that his conduct showed that for years "he has posed a threat to the security and property of other members of society" (A. 621). There was no hope that he could be rehabilitated through moderate sentences and post -release supervision (A. 623). The prosecutor asked for a sentence of 20 years to life (A. 628). In response, counsel pointed out there had never been an allegation in appellant's criminal history that he ever caused physical harm to anyone, or 26 threatened to cause physical harm. In the People's description of his criminal conduct, he always avoided confrontation with other people. Counsel added that, based on the People's representations, the real issue could be appellant's drug problem. The imposition of a life sentence would not address this issue. While appellant had previously been offered rehabilitation, appellant was now an older man and at a different stage in his life. Rehabilitation was a viable option (A. 629- 30). Appellant addressed the court and complained about his trial attorney. He pointed out that counsel did not impeach Vargas with his prior inconsistent testimony about the number and extent of the scratches on the door (A. 631-32). The court believed that a persistent sentence was appropriate. It found that appellant persisted in using drugs despite previous "efforts to show him the way to treatment." He persisted in "not coming to court when he's supposed to. He persists in committing burglaries and larcenies." The court added that appellant was "a person unfortunately that can't be trusted on the street. This is something that very badly affects people's lives. It has a huge economic impact and the only way to stop Mr. Giles is by locking him up" (A. 633). The court imposed a sentence of 20 years to life on the burglary count to run concurrently with a sentence of one year on the burglar's tools count, with these sentences running concurrently to the previously imposed terms of 20 years 27 to life on the possession of stolen property counts (A. 633-34). Appeal to the Appellate Division, First Department On May 22,2012, the Appellate Division, First Department, unanimously aff1rmed appellant's conviction, but modified the sentence by reducing the enhanced sentences to 15 years to life. People v. Giles, 95 A.D.3d 670 (1st Dep't 2012) (A. 2-3). With respect to the ineffective assistance of counsel claim, the Appellate Division held: Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters of strategy not reflected in the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982]). Defendant raised one of his attacks on counsel's strategy in a CPL 330.30(1) motion to set aside the verdict. However, that motion was procedurally defective, and "[t]o the extent the motion could be deemed a de facto or premature motion to vacate judgment pursuant to CPL 440.10, the issues raised in the motion are unreviewable since defendant failed to obtain permission from this Court to appeal" (Eeople v. AiJiang, 62 A.D.3d 515, 516 [2009] (A. 4). The court continued: To the extent that the existing record permits review, either standing alone or supplemented by the submissions on the CPL 330.30 (1) motion, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v. 28 Washington, 466 US 668 [1984]). Defendant has not shown that either or both of counsel's alleged deficiencies fell below a (sic) objective standard of reasonableness, or that they deprived defendant of a fair trial, affected the outcome of the case, or caused defendant any prejudice (A. 4-5). As to the Apprendi claim, the Appellate Division held that both the trial court and the resentencing court had properly exercised their discretion in adjudicating defendant a persistent felony offender. Citing People v. Battles, 16 N.Y.3d 54, 59 (2010), the Appellate Division found that appellant's "challenge to the constitutionality of those adjudications is unavailing." (A. 6). ARGUMENT POINT I APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CAN BE CONSIDERED ON DIRECT APPEAL WHERE, PURSUANT TO C.P.L. § 330.30, THE ISSUE WAS FULLYLITIGATEDBELOW,AFULLFACTUAL RECORD WAS CREATED, AND THE TRIAL COURT ADDRESSED THE MERITS OF THE CLAIM. Following his conviction appellant moved prose to have a new attorney assigned to his case arguing that, among other things, trial counsel had provided ineffective assistance of counsel by failing to call a defense investigator who had testified at his first trial, to impeach the prosecution's claims as to the presence of 29 scratches on the lock of the door he was allegedly trying to break into. New counsel was appointed and a subsequent motion to vacate the conviction, adopting all of appellant's arguments was @ed. The trial assistant opposed the motion to vacate the conviction and attached to her response an affidavit from trial counsel explaining his reasons for not calling the witness. The trial court, based on the record before it, determined that counsel's explanation for not calling the witness was "credible" and denied the motion. Nevertheless, on appeal, the Appellate Division determined that appellant's claim that he had received ineffective assistance of counsel was "procedurally defective" as it "involved matters of strategy not reflected in the record." Giles, 95 A.D.3d at 670. The Appellate Division's decision is wrong. A. This Court's Review is Limited to the Merits of Appellant's Claim Initially, this Court's review is limited to the trial court's denial of appellant's motion on the grounds that counsel's conduct in not calling the defense investigator as a witness was objectionably reasonable. Although the prosecution protested, in response to appellant's motion, that the motion could not be properly raised under C.P.L. § 330.30, the trial court never addressed the issue, and instead denied the motion on the merits. Under the circumstances, the Appellate Division was wrong to base its affirmance on the ground that appellant's motion was procedurally defective, and this Court may not do so now. 30 See C.P.L. § 470.15(1), 470.35(1); People v. Concepcion, 17 N.Y.3d 192 (2011); Peoplev. LaFontaine, 92N.Y.2d470 (1998);Peoplev. Yusuf, 19 N.Y.3d314,321 (2012). Criminal Procedure Law § 470.15(1) bars the Appellate Division from affirming a judgment, sentence, or order on a ground not ruled upon by the trial court or not decided adversely to the appellant, and C.P.L. § 470.35 grants this Court no broader powers. See Conception 17 N.Y.3d at 195. This Court has applied this legislative restriction stricdy, declining, absent Legislation action, to read the statute to permit appellate review of any preserved alternative ground for affirmance that relates to the overarching error or defect, see Conception, 17 N.Y.3d at 200-01; LaFontaine, 92 N.Y.2d at 474. Review is confined to the ratio decidendi for the lower court's decision, even if other issues are relevant and even independendy dispositive. LaFontaine, 92 N.Y.2d at 473-74. Further the statutory restriction applies across the board, to pretrial suppression rulings, see. ~, Conception, 17 N.Y.3d at 195-95; evidentiary rulings, see Conception, 17 N.Y.3d at 200 (discussing LaFontaine's application in the context of the trial court's ruling regarding delayed disclosure of Brady material); id. at 199 (discussing LaFontaine's application in the context of the co-conspirator exception); sufficiency determinations, id. at 199-200 (discussing LaFontaine's application in the context of the defendant's motion to dismiss); and sentencing 31 matters, see People v. Yusef, 19 N.Y.3d 314, 322 (2012)(holding C.P.L. §§ 470.15(1) and 470.35(1) barred Appellate Division and this Court from reviewing United States Supreme Court's determination in defendant's favor that North Carolina robbery statute was broader than its New York counterpart). Here, although the trial assistant complained that appellant's claim of ineffective assistance of counsel could not properly be raised in a C.P.L. § 330.30 motion, the trial court never addressed that issue. Instead, it denied the motion based on the entire record before it and found that counsel's explanation for not calling the witness was credible. A procedural defect did not, therefore, constitute any part, much less the ratio decidendi, of the lower court's denial of appellant's motion. LaFontaine 92 N.Y.2d at 474. As the merits of his claim was the only ground decided adversely to appellant, C.P.L. §§ 470.15(1) and 470.35(1) permit review of only that issue and bar this Court from addressing the issue of procedural defect. E.g., Yusuf, 19 N.Y.3d at 320-21 (where lower court ruled that out-of-state felony was broader on its face than its New York counterpart but it could consider indictment for narrowing purposes, this Court could review only adverse determination regarding scrutiny of indictment and not defense-favorable determination that statute was broader); cf. People v. Fuentes, 12 N.Y.3d 259, 263 (2009) (where Supreme Court found no Brady violation on two grounds -- document was not material and defendant had opportunity to use it -- Appellate 32 Division, consistent with LaFontaine, could affirm on one ground and this Court on the other). B. In Any Event. Appellant's Motion was not Procedurally Defective The power of a court to set aside a guilty verdict is "created and measured" by statute. People v. Schmidt, 216 N.Y. 324, 328 (1915). A lower court has no inherent power to set aside a guilty verdict, see People v. Carter, 63 N.Y.2d 530, 537-38 (1984), but is limited to those grounds enumerated by statute and their statutory criteria, see, e.g., People v.Jackson, 78 N.Y.2d 638, 647(1991). Thus, on a motion pursuant to C.P.L. § 330.30, the court is limited to the grounds and criteria enumerated therein. People v. Carthens, 171 A.D.2d 387, 391 (1st Dep't 1991). Pursuant to C.P.L. § 330.30, a motion to set aside the verdict may be brought on grounds of juror misconduct, see 330.30(2), newly discovered evidence, see 330.30(3), or on "any ground appearing in the record which, if raised upon an appeal . . . would require a reversal or modification of the judgment as a matter oflaw by an appellate court," see 330.30(1). Thus, 330.30 motions not involving juror misconduct or newly discovered evidence must be "limited to grounds appearing in the record." See People v. Wolf, 98 N.Y.2d 105, 119 (2002). The Appellate Division here interpreted the "on the record" language to 33 mean that the record was limited to those proceedings that occurred on the record prior to the verdict. That, however, is not the most reasonable reading of this provision. Indeed, the word "record" is used in C.P.L. § 330.30(1) without any such modifier. Rather, the critical language "if raised upon an appeal" mandates that the ground raised must be one on which an appellate court can grant relief as "a matter of law." Accordingly, trial courts have no authority to set aside guilty verdicts based on their own assessment of the weight of the evidence. See. e.g., People v. Ventura, 66 N.Y.2d 693 (1985); People v. Carter, 63 N.Y.2d 530 (1984). Nor can a trial court set aside a verdict where the issue was not properly preserved at trial. See, e.g., People v. Everson, 100 N.Y.2d 609 (2003)(affirming Appellate Division's reversal of order vacating conviction under 330.30 where issue was not preserved at trial). Thus, as a practical matter, section 330.30 motions generally refer to matters in the record occurring prior to the verdict. But, nothing in the language of section 330.30 limits the "record" in that manner. The relevant record is the entire record before the appellate court including proceedings occurring between verdict and sentence. Motion papers and the trial court's decision on a 330.30 motion are part of the record on appeal. See C.P.L.R. § 5526; 22 N.Y.C.R.R. 600.10(b)(1)(iii)("If the appeal is from a final judgment, [record must contain] the notice of appeal, the judgment roll, the 34 co.r.rected transcript of the proceedings . . . any .relevant exhibits, o.r copies of them, ... any othe.r .reviewable o.rde.r; and any opinions in the case."). Indeed, it makes no sense to limit the .reco.rd with .respect to ineffective assistance of counsel claims to p.re-ve.rdict proceedings. In contrast to the typical appellate claim, ineffective assistance of counsel claims cannot be p.rese.rved du.ring the pendency of the trial. Defense counsel can ha.rdly be expected to interject objections to his own .representation during the pendency of the trial. Such claims will, the.refo.re, be b.rought eithe.r by appellant pro se following his conviction o.r by newly appointed counsel in a 330.30 motion. That is precisely what occu.r.red in this case. Appellant moved, pu.rsuant to C.P.L. § 330.30, to set aside the ve.rdict claiming that trial counsel had p.rovided less than effective .representation by failing to call the defense investigator. In .response, the trial assistant submitted an affidavit f.rom defense counsel .responding to that claim. Addressing the motion exclusively as a section 330.30 motion, the cou.rt specifically .relied upon that affidavit in denying the motion. That decision, and the facts upon which the cou.rt .relied in making its decision, clea.rly .represent a g.round that appea.rs in the .reco.rd which, if .raised on appeal, would .requi.re .reve.rsal as a matte.r of law. See, e.g., People v. Bussey 6 A.D.3d 621, 622-23 (2d Dep't 2004)(o.rdering new trial based on ineffective assistance of counsel claim .raised in § 330.30 motion, .relying upon factual .reco.rd c.reated 35 during 330.30 hearing that counsel did not adequately investigate alibi witnesses known to him); People v. Bartley, 298 A.D.2d 160 (1st Dep't 2002)(dismissing People's appeal, holding "[d]efendant's motion to set aside verdict was properly granted on the ground of ineffective assistance, which, under the circumstances presented, was a "ground appearing in the record"); People v. Washington, 184 A.D.2d 451 (1st Dep't 1992)(affirming denial of 330.30 motion based on ineffectiveness of counsel relying upon counsel's statements to the court at time of motion explaining his trial strategy). The Appellate Division's determination that the lower court's decision was unreviewable because that the trial court had converted the 330.30 motion into a motion pursuant to C.P.L. § 440.10, and appellant had not sought leave to appeal, has no basis in the facts or the law. As discussed supra, the record is clear that the lower court never converted the motion into a 440.10 motion or ever indicated that it was considering it as a "de facto" or "premature" 440.10 motion. Cf. People v. Toland, 2 A.D.3d 1053, 100-56 (3d Dep't 2003)(upon notice to parties court properly turned 330.30 motion into 440.10 motion); People v. Deblinger, 179 Misc.2d 35, 38 (Sup. Ct., Kings Cty.1998)(same). Nor is there any legal support for holding that a pre-judgment motion raising a claim of ineffective assistance of counsel can only be a "de facto" 440.10 motion. To the contrary, allowing claims of ineffective assistance of counsel to 36 be litigated in 330.30 motions, as was done here, conforms with the statute and fully protects a defendant's rights. Motions pursuant to 330.30 differ significantly from motions made pursuant to 440.10. First, a section 440.10 motion can only be filed after the judgment, while a motion pursuant to section 330.30 must be filed pre-judgment. Thus, a criminal defendant has a constitutional right to a competent attorney throughout the pendency of a 330.30 motion. In contrast, a defendant has no right to counsel on a collateral attack of his conviction, i.e., a 440.10 motion. See. ~'Coleman v. Thompson, 501 U.S. 722,752 (1991); Pennsylvania v. Finely, 481 U.S. 551, 555 (1987); People v. Simmons, 100 A.D.3d 809 (2d Dep't 2012). As the United States Supreme Court recently noted, "[a] prisoner's inability to present a claim of trial error is of particular concern when the claim is one of ineffectiveness of counsel." Martinez v. Ryan,_ U.S._; 132 S.Ct. 1309, 1317 (2012). While the Supreme Court refused to reach the issue of whether an indigent defendant had a constitutional right to counsel on a collateral proceeding, it held that the absence of counsel could establish cause for a procedural default. Id. at 1318. Alternatively, cause for the default could be established where appointed counsel provided ineffective assistance on the collateral attack. Id. Allowing defendants to pursue a claim of ineffective assistance in a 330.30 motion protects their right to counsel, a right which is "the foundation for our adversary 37 system." Id. at 1317. Moreover, as noted supra, a court's decision on a 330.30 motion is part of the record on appeal and thus, reviewable by an appellate court. In contrast, there is no automatic right to appeal a lower court's denial of a 440.40 motion. Rather, a defendant must seek permission to appeal. C.P.L. § 450.15(1); People v. Ai Jiang, 62 A.D.3d 515 (2009)(refusing to review defendant's ineffective assistance claim where motion improper under 330.30 and appellant did not seek leave to appeal de facto 440.10 motion). Permission may be, and often is, denied pursuant to C.P.L. § 460.15(1). E.g., People v. Evans, 16 N.Y.3d 571 (2011)(concluding counsel not ineffective for failing to raise statute of limitations defense despite absence of counsel's affirmation admitting ignorance of law because Appellate Division judge denied leave to appeal denial of 440.10 motion); People v. Rincon, 62 A.D.3d 574 (1st Dep't 2009)(finding issues raised on 440.10 motion unreviewable as leave to appeal denial of motion denied). No appeal lies from an order denying a motion for leave to appeal to the Appellate Division. People v. Adams, 82 N.Y.2d 773 (1993); People v. Williams, 342 N.Y.S.2d 75 (2d Dep't 1973). There is simply no statutory authority in the criminal procedure law for review by this Court of an Appellate Division order refusing permission to appeal to this Court. People v. Brock, 332 N.Y.S.2d 110 (1st Dep't 1972). Thus, once the Appellate Division denies leave to appeal the denial of a § 440.10 motion, a 38 criminal defendant is at "the end of the road within the state system." United States ex rel. Graham v. Mancusi, 457 F.2d 463, 467 (2d Cir. 1972). As the Supreme Court noted, although forcing a defendant to bring an initial claim of ineffective assistance of counsel on a collateral attack may be constitutional, by doing so "the State significandy diminishes a [criminal defendant's] ability to ftle such claims. Martinez, 132 S.Ct. at 1318. Accordingly, appellant's claim is reviewable on appeal. C. Counsel Provided Less than Effective Representation This Court must now reverse. The prosecution's theory at trial was that appellant attempted to pick the doctor office's lock with a knife. One of the most critical facts to support that theory was the claim that there were fresh scratches on the lock. However, the testimony at the second trial as to the number of scratches was far different from that presented at the first trial. At the first trial, Vargas, the maintenance worker, testified that he only saw one scratch on the side of the door. In contrast, at the second trial, Vargas tripled the number of scratches that he saw. Counsel never impeached Vargas with his prior inconsistent testimony. Also, at the first trial, a defense investigator testified that he did not see any scratches when he looked at the lock only days after the incident. At the second trial, the defense inexplicably did not present the investigator's highly favorable testimony. Counsel's failure to impeach Vargas on 39 his prior inconsistent testimony or call the investigator was clearly deficient and there was no credible strategic reason for failing to take these critical steps. Because these scratches were a critical element of the People's case, the failure to adequately challenge this testimony was prejudicial to appellant. Under the Sixth Amendment to the United States Constitution and under New York State's Constitution, a criminal defendant is entided to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984); People v. Baldi, 54 N.Y.2d 137, 146-47 (1981). To prevail on a claim under Strickland, a defendant must meet a two part test. Strickland, 466 U.S. at 688. First, he must demonstrate that his counsel's performance "fell below an objective standard of reasonableness" "under the prevailing professional norms." Id. Second, he must show that counsel's errors resulted in prejudice, meaning that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694. Under New York's standard governing ineffectiveness claims, courts consider whether the defendant received "meaningful representation." Baldi, 54 N.Y.2d at 146-47. This standard focuses upon whether counsel's mistakes undermined the fairness of the process as a whole. People v. Benevento, 91 N.Y.2d 708, 711 (1998). Whether counsel has performed adequately "is necessarily a question of degree, in which cumulative errors particularly on basic 40 points essential of the defense, are often found to be determinative." People v. Droz, 39 N.Y.2d 457,462 (1976). Moreover, even one significant error m otherwise satisfactory representation constitutes ineffectiveness if the defendant was deprived of a fair trial. See Rompilla v. Beard, 545 U.S. 374 (2005); see also People v. Caban, 5 N.Y.3d 143, 152 (2005) ("A single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial.") (citing People v. Hobot, 84 N.Y.2d 1021 (1995), and People v. Flores, 84 N.Y.2d 184 (1994)). In this case, counsel made two critical mistakes that, both individually and collectively, fatally undermined the fairness of appellant's trial. Defense counsel's strategy at trial was to argue that, despite what the officers may or may not have seen, appellant never came "dangerously close" to committing a burglary. One hurdle to pursuing that strategy was the evidence presented at trial that there were several scratches on the lock, including some on the side of the door, which suggested that appellant had made a real effort to try and pick the lock. Counsel's main response to the "scratches" evidence was simply to argue that the scratches were "small." However, there were two highly critical ways in which to challenge this testimony. Both of these strategies would have significantly undermined the 41 testimony about the existence of the scratches to the lock. With great prejudice to appellant, counsel did not pursue either challenge. This clearly was ineffective assistance. First, counsel did not impeach Vargas with his prior inconsistent testimony about the number of scratches on the lock. At the flrst trial, Vargas testifled that he was asked to check the door. He then checked the door and observed only one scratch on the side of the door. That was it. However, at the second trial, he tripled the number of scratches that he saw. The set-up at the second trial was exacdy the same as the fust: he testifled that he was told to look at the door and then he observed the door. But different from his testimony at the fust trial, he testifled that he saw three signiflcant scratches on the lock: now there were two on the side of the door and one on the front of the lock. Despite this complete change in testimony that provided signiflcant additional support to the People's theory that appellant had been making a forceful and sustained effort to pick the lock, counsel did not impeach Vargas with his prior inconsistent testimony. This was deflcient performance. There was no credible strategic reason for failing to impeach Vargas with this critical inconsistency. This was an obvious inconsistency that related to the central reason why the People called Vargas as a witness -- to establish that there was damage to the lock. But the prior inconsistent testimony raised serious 42 questions about the reliability ofhis observations and memory. It was an essential way to impeach this witness. Critically, counsel did attempt to impeach Vargas with his prior testimony. However, counsel solely attempted to impeach Vargas with testimony that arguably fell under the Bornholdt preclusion concept. See People v. Bornholdt, 33 N.Y.2d 75, 88 (1973) (witness cannot be impeached with prior omission unless witness' attention was called to the matter and he was specifically asked about it), cert. denied, 416 U.S. 905 (1974). But this prior testimony clearly did not fall under Bornholdt: he was specifically asked at the ftrst trial about the damage that he observed to the lock. In fact, the set-up at both trials was exactly the same: he testified that he was asked to look at the door and then he was asked to testify about what he observed. He simply altered what he saw. And he did it in such a way to harm appellant. In fact, this was not an omission like in Bornholdt. It was truly a prior inconsistent statement. Counsel should have challenged him on this testimony. Thus, there can be no credible explanation for this deficient performance. See People v. Turner, 5 N.Y.3d 476, 484 (2005) (trial attorney's failure to raise meritorious defense to lesser could not be considered strategic where he objected to submission of lesser, but raised different argument). The second critical error was that counsel did not call the defense investigator to testify that there were no scratches on the lock. At the fust trial, 43 the defense investigator gave critical evidence that, only days after the incident, he viewed the lock and did not see any scratches on it. The potential importance of this testimony cannot be overstated. The investigator's testimony directly contradicted the People's case. Indeed, without this testimony establishing that the locks did not have damage, defense counsel was forced to take the defensive position that the damage was "small." Clearly, it would have been far more effective to be able to argue to the jury that there was no damage at all. In addition, this testimony tended to undermine the police officers' testimony as to what they actually saw at the door, which was another component of counsel's trial strategy. There can be no doubt that this testimony was critically important to the defense. This decision to bypass the investigator's testimony cannot be excused as a reasonable trial strategy. The investigator's testimony would have made counsel's chosen trial strategy significantly stronger. It was fully consistent with the arguments that he presented to the jury. Despite the significant benefit to the defense of calling the investigator, counsel explained that he did call him because the blurry photographs that the investigator undermined his credibility. This was not a credible reason for failing to call the investigator. The importance of the testimony far outweighed any potential problems arising from the blurry photograph. Because the evidence was 44 critical to contradict a central tenet of the People's case, the assessment of the reliability of the testimony should have been left for the jury. This is particularly true when looked at in conjunction with the manner in which Vargas's testimony should have been impeached. His testimony on the scratches was unreliable. And even with the officer's testimony about the scratches, counsel still could have turned the scratches into a credibility contest, as opposed to resorting to the far weaker defensive posture that he took at trial. It should also be noted that counsel could have had the investigator testify without the photographs. And even if the People sought to impeach him with the photographs, the defense would have been given the chance to rehabilitate the witness. The investigator would have been allowed to explain that simply because his photos were blurry did not mean that his actual vision was not accurate. Accordingly, counsel was deficient for failing to impeach Vargas or call the defense investigator. Moreover, this deficient performance prejudiced appellant and deprived him of a fair trial. A critical component of the People's argument at trial was that there were scratches on the lock. Indeed, the prosecutor repeatedly focused on the scratches in summation. Counsel took a highly defensive posture at trial. He admitted the damage but said that it was minimal. However, defense counsel had at his disposal two critical ways to undermine this evidence. These two critical 45 steps would have not only undermined the People's theory but fully supported the argument that defense counsel pursued at trial, namely that appellant had not come dangerously close to committing a burglary. Thus, counsel's failure to pursue these two steps had a double impact: it bypassed both a critical way to contravene the People's case and to improve appellant's defense. There can be no doubt that counsel's failures prejudiced appellant and deprived appellant of a fair trial. Accordingly, appellant's conviction should be reversed and a new trial ordered. POINT II APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A JURY TRIAL AND DUE PROCESS WHEN HIS SENTENCE WAS ENHANCED BEYOND THE OTHERWISE APPLICABLE MAXIMUM TERM BASED ON FACTS FOUND BY A JUDGE AND NOT BY A JURY BEYOND A REASONABLE DOUBT. U.S. CONST., AMENDS. VI, XIV; N.Y. CONST., ART. I,§§ 2, 6. "When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper authority." Blakelyv. Washington, 542 U.S. 296,304 (2004) (internal citation omitted). In sentencing appellant as a persistent felony offender under Penal Law § 70.10 and C.P.L. § 400.20, the court 46 exceeded its constitutional authority as the enhanced sentence could not have been imposed unless the court made additional factual findings beyond the jury's verdict. Consequently, appellant's sentence should be vacated and the case remanded for resentencing. U.S. Const., amends. VI, XIV; N.Y. Const., art. I, §§ 2, 6. In its landmark decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that the Sixth and Fourteenth Amendments to the federal Constitution require that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. The Supreme Court significantly broadened the Apprendi rule in Blakely. In that case, the Court clarified that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely, 542 U.S. at 303. It explained, "[I]he relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Id. at 303-04 (citation omitted). The Court concluded that "[t]he judge in this case could not have imposed the [enhanced] sentence solely on the basis of the facts admitted in the guilty plea." Id. The sentencing judge in Blakely "acquire[d] that authority [to go above 47 the maximum sentence] only upon finding some additional fact." Id. at 305. The Court emphasized, "Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specific facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence." Id. It clarified that an enhanced sentence based on judicial fact finding was improper "whether the judicially determined facts require a sentence enhancement or merely allow it." Id. at 305 n.8. In Cunningham v. California, 549 U.S. 270, 288, 290-91 (2007), the Supreme Court confirmed the broad reach of the "bright line" rule established in Apprendi and Blakely. Most notably, the Court emphasized that it has "repeatedly" held that "any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." Id. at 281 (emphasis added). In addition, the Court stated: We cautioned in Blakely, however that 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 the force of our decisions. 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. 542 US. at 305 ..... 48 Id. at 290 (emphasis added). Under this precedent, the persistent felony offender statute is unconstitutional. Before an enhanced sentence may be imposed under the persistent felony offender statute, the judge is required at the second prong of the statute to make factual findings about "the history and character of the defendant and the nature and circumstances of his criminal conduct." Penal Law§ 70.10(2); C.P.L. § 400.20 (1). It is precisely this shift in fact-finding authority from a jury to a judge that the Supreme Court has found to be constitutionally impermissible. Once the court imposed an enhanced sentence that relied upon "any" aggravating fact that was not reflected in the jury's verdict, petitioner's right to a jury trial and due process was violated. See Cunningham, 549 U.S. at 281; Blakely, 542 U.S. at 305. And that is precisely what occurred here. The sentencing court enhanced appellant's sentence based on a broad range of judicial fact findings that went well beyond the facts of his prior convictions. As such, the enhanced sentence under the persistent felony offender statute is unconstitutional. Counsel's constitutional objection to the sentencing should have been sustained. This Court, has of course, upheld the constitutionality of the statute. See People v. Battles, 16 N.Y.3d 54 (2010); accord People v. Quinones, 12 N.Y.3d 116 (2009); People v. Rivera, 5 N.Y.3d 61 (2005); People v. Rosen, 96 N.Y.2d 329 (2001). However, in its prior decisions upholding the constitutionality of the 49 persistent felony offender statute, the Court has provided two main reasons for why the statute survives constitutional scrutiny: (1) the fact of two prior felony convictions is the only finding necessary to impose the enhanced sentence while the required fact-based "opinion" at the second prong of the statute is nothing more than the traditional exercise of judicial discretion; and (2) Apprendi and its progeny concerned the finding of facts that were the equivalent of an "element" of an offense, while the fact finding under the persistent felony offender statute focused on facts related to the exercise of sentencing discretion. See People v. Quinones, 12 N.Y.3d at 125-30; see also Rivera, 5 N.Y.3d at 61. The Supreme Court's decision in Southern Union Co. v. United States,_ U.S._, 132 S.Ct. 2344 (2012), fully undermines both of these reasons. In that case, the Supreme Court concluded that the Apprendi rule applies to the imposition of criminal fines. 132 S.Ct. at 2357. In reaching this conclusion, the Court looked to the history of the Sixth Amendment and determined that applying Apprendi to criminal fines was an "application of the 'two longstanding tenets of common-law criminal jurisprudence' on which Apprendi is based." Id. at 2354. The first is that a jury of 12 must find the truth of every accusation. Id. at 2355. The second is that "an accusation which lacks any particular fact which the law makes essential to the punishment is no accusation within the requirements of the common law, and it is no accusation in reason." I d. (internal 50 citations omitted). The Supreme Court also specifically rejected the government's argument that the findings did not implicate the Apprendi rule because they did not "defin[e] a separate set of acts for punishment." Id. at 2356. It held that the argument was defective because it rested on an assumption that the Apprendi rule rejects: "that in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an 'element' of an offense and one that is a 'sentencing factor."' Id. These holdings contradict this Court's reasons for upholding the statute. As the Court has acknowledged, the fact -based "opinion" at the second prong of the statute remains a necessary step before the enhances sentence can be imposed. Rivera, 5 N.Y.3d at 69. This mean that this fact-based opinion remains a finding that is "essential to the punishment." This requirement that the court issue a fact- based opinion before imposing the enhanced sentence is unique among the entire New York sentence scheme. No other sentencing statute requires such a finding to justify a sentence. C.P.L. § 380.50(3)("The courtmt!) ... summarize the factors it considers relevant for the purpose of the sentence ... )(emphasis supplied); Preiser Practice Commentaries to C.P.L. § 380.50 ("note that there is no requirement for the court to specify the factors it is relying upon in exercising is sentencing discretion"). 51 Due to the uniqueness of the statute, the Court seemingly misapprehended the constitutional significance of the required finding at the second prong. Because this statute, unlike any other statute in New York, makes the fact-based opinion an "essential" step to justify imposition of the enhanced sentence, the requirement falls squarely within the "longstanding tenets" of criminal law jurisprudence that mandate that a jury make the finding. Simply describing this requirement as a traditional exercise of judicial sentencing discretion does not shield it from the force of the Apprendi rule. To the contrary, placing this fact- based discretion with a judge, as opposed to a jury, is precisely why the statute is unconstitutional. See Cunningham, 549 U.S. at 290 ("We cautioned in Blakely, however that 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 the force of our decisions.") (emphasis supplied). Just as important, Southern Union squarely rejected the Court's distinction between the type of fact finding required under the statute and those at issue in Apprendi and its progeny. The Supreme Court has now made abundantly clear that fact finding that would be considered "sentencing factors" related to the exercise of sentencing discretion fall under the Apprendi rule. The facts of this case show precisely why the statute is unconstitutional. 52 Both of the sentencing judges made the specific factual finding that appellant was incorrigible to justify the imposition of the enhanced sentence. That is an unconstitutional shift in fact finding authority. In fact, the first sentencing court's statements at the persistent felony offender hearing provide a stark example of where the statute runs afoul of the Sixth Amendment. In deciding to impose the enhanced sentence, the judge emphasized that only his judgment counted as to whether appellant was beyond rehabilitation. But Apprendi and its progeny, in particular, Southern Union, make clear that a finding of this type of sentencing factor to justify an enhanced sentence must be made by a jury, not solely by a judge. Accordingly, because appellant's sentence as a persistent felony offender is unconstitutional, the sentences must be vacated and the case remanded for resentencing. 53 CONCLUSION FOR THE REASONS STATED IN POINT I, APPELLANT'S CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. ALTERNATIVELY,THEMATTERSHOULDBE REMANDED TO THE APPELLATE DIVISION FOR PROPER CONSIDERATION OF THE CLAIM. FOR THE REASONS STATED IN POINT II, APPELLANT'S STATUS AS A PERSISTENT FELONY OFFENDER SHOULD BEVACATEDANDTHEMATTERREMANDED FOR RESENTENCING AS A PREDICATE FELONY OFFENDER. ~ //_fl I ~ j-p J /---' JANHOTH / Of Counsel December 6, 2013 Respectfully submitted, ROBERTS. DEAN Attorney for Defendant-Appellant 54
