Rarely has a criminal law issue engendered more appellate litigation than whether New York’s persistent felony offender (PFO) statute violates the Sixth Amendment jury trial guarantee.
The pertinent history follows. In 2001, in People v. Rosen, the New York Court of Appeals upheld the PFO statute against an Apprendi challenge.1 Then, in 2005, in Brown I, the U.S. Court of Appeals for the Second Circuit deemed it reasonable for the New York courts to have concluded that the PFO statute did not violate Apprendi.2 That same year, in People v. Rivera, the New York Court of Appeals revisited the issue in light of the U.S. Supreme Court’s decision in Blakely and concluded again that the PFO statute was constitutional.3 After this, in 2006, in Brown II, the Second Circuit reexamined the issue in light of the Supreme Court’s decision in Ring and again held that it was reasonable for the New York courts to have found that the PFO statute was constitutional.4
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