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Sentencing Law and Policy
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Consecutive problems?

By Douglas Berman

As I noted here, the issue of Blakely‘s applicability to judicial imposition of consecutive sentences is a hugely important question that the Supreme Court will likely need to address before long. This is an especially important issue because even states that do not have obvious Blakely issues in its basic sentencing procedures may have rules about the imposition of consecutive sentences which implicate Blakely.

Evidence of these realities comes from a New York ruling last week, which just appeared on-line. In NY v. Murray, 2004 NY Slip Op 24388Murray articulated the defendant’s claim and the claim’s rejection this way:

Defendant also contends that the determination that the new intent and the act of shooting were an “afterthought” which, under New York law, warrants a consecutive sentence, must now be submitted to the jury by virtue of Apprendi v. New Jersey, 530 U.S. 466 (2000). In other words, defendant contends that New York’s statutory law permitting consecutive sentences for two or more offenses based on factors arguably not determined by a jury violates defendant’s Sixth Amendment right to a trial by jury.

No New York court appears to have considered this question. Notably, it was not raised on defendant’s direct appeal. In Apprendi v. New Jersey, supra, at 474, the Supreme Court noted that, in deciding the constitutional question of whether a sentencing court could exceed the statutorily authorized maximum sentence for a particular crime based upon a judicial determination of racial bias, it was not addressing the question of whether the sentencing court could have achieved the same result by imposing consecutive sentences for the several counts on which that defendant was convicted. Several courts have considered the question raised here. The Supreme Court of Illinois held, “we find that Apprendi concerns are not implicated by consecutive sentencing.” People v. Wagener, 752 N.E.2d 430 (2001). See also People v. Vaughn, 2004 WL 2223299 (Cal. App. 2 Dist. 2004); Hood v. McAdory, 2004 WL 251830 (N.D. Ill. 2004). Likewise, this court finds no basis to extend Apprendi to prohibit consecutive sentences imposed for separate counts of an indictment where no single sentence exceeds the statutorily authorized maximum sentence. Some would argue that the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), now requires that the determination as to whether a certain statutory basis for consecutive sentences [PL 70.25 (2)] has been established must be submitted to the jury because it is a factual question. This court considers the question of whether consecutive sentences are authorized to be a legal question based on the jury’s verdicts. Until the Supreme Court, the New York Court of Appeals or the Appellate Division holds otherwise, this court will not invalidate New York’s statutory scheme that makes that determination a judicial one.