I was sentenced to 15 years to life in 1984 under NY's Persistent Felony offender statutes (NY Penal Law 70.10 & NY Criminal Procedure Law 400.20) for a gun charge (CPW 3rd degree) which normally carries a maximun 3 1/2 -7 year Penalty. Surface, a Syracuse University legal publication (college of Law Faculty Scholarship) summer 7-26-2012 wrote a paper entitled: " Discretionary Persistent Felony Offender Sentencing In New York: Can it survive Apprendi? which essentially asserts NY's PFO adjudication sentencing provisions (NY CPL 400.20) " History and Character " findings requirement for discretionary sentence enhancement, to be unconstitutional as found by a trial Justice and not a Jury. I was paroled in 2005, still have issues regarding bias by the state trial court (never actually litigated for procedural default reasons) and am asking can I now raise a challenge to NY CPL 400.20 in a USC title 42 section 1983 Civil Action?

  • Could you actually explain the gun charge specifically (unlinked acronym and degree is not helpful in looking it up) You probably want to talk to a real lawyer, rather than some people on the internet, most of whom are not lawyers.
    – hszmv
    Commented May 21, 2019 at 20:09
  • 1
    The legal publication has no weight of law, but it should have cites that may support your claim. But if you are trying to fight "malicious prosecution" you'll fail as it sounds like you indeed had the gun. If you are held in jail with a sentence that is later found unconstitutional, you are not due any recompense (unless there is some statute otherwise for your state or specific situation). Separately, it's probably a good idea to see if you can get all felonies reduced to misdemeanors, and then eventually get those expunged.
    – Myndex
    Commented Jun 21, 2019 at 22:33

1 Answer 1


I see lots of possible issues here, including:

  • Will the Apprendi decision be given retroactive effect?
  • Were the constitutional issues raised at the time of trial, and if not will a court permit them to be raised later?
  • Will a court agree with the law review publication?
  • Will the facts in your case be sufficiently similar to the cited case?

Beyond those, in a section 1983 suit many public employees have qualified immunity unless the legal point was already "well established" when the violation occurred.

To pursue this you will need to work with a lawyer skilled in this area. No one on this forum can possibly given you a reliable answer as to whether you have a reasonable case.

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