A discussion of an important decision regarding the constitutionality of New York’s persistent felony statute requires focus on persistence. For years, Andrew C. Fine of the Appeals Bureau of the Legal Aid Society of New York had urged that the New York persistent felony statute unconstitutionally deprives a defendant of the right to have each fact which increased the penalty a defendant faced to be submitted to a jury and proved beyond a reasonable doubt. In part, Mr. Fine twice challenged the statute at the New York Court of Appeals (People v Rosen, 96 NY2d 329  and People v Daniels, 5 NY3d 738 ), and at the Second Circuit (Brown v Greiner, 409 F3d 523 (2d Cir 2003]). He also kept advising defense attorneys at numerous CLE presentations and in written practices guides that, despite the holdings of the New York Court of Appeals rejecting these arguments, the issue was still unsettled and should still be raised so that eventually the clients would be eligible for relief when federal appellate courts finally decided the issue.
Mr. Fine’s persistence paid off. He was one of the winning attorneys in the consolidated decisions in Besser v Walsh, _F3d_ [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender statute after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 ), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”