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October 02, 2009


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Regarding O'Brien - Most mandatory minimum terms in New York are dictated by prior felony convictions alone, and so would fall outside of Apprendi's reach. New York law does include a few sentencing provisions where the minimum term might be governed by judicial fact finding within the meaning of Apprendi. However, the most significant, the ameliorative gun sentencing provisions [Penal Law sections 70.02 (2)(c) and (4), Penal Law section 70.15 (1)], have been rendered largely irrelevant by the 2006 amendment raising possession of a loaded gun to a Class C violent felony. Another sentencing law in this category, the domestic violence exception to determinate sentencing (Penal Law section 60.12), has been invoked only a handful of times since 1998.

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