N.Y. CPL Law § 400.15 — New York Code / Act CPL / Part 2 / Title L / Article 400 / Section 400.15
Procedure for determining whether defendant is a second violent felony offender
Status: in_force

§ 400.15  Procedure for determining whether defendant is a second\n             violent felony offender.\n  1.  Applicability.  The provisions of this section govern the\nprocedure that must be followed in any case where it appears that a\ndefendant who stands convicted of a violent felony offense as defined in\nsubdivision one of section 70.02 of the penal law has previously been\nsubjected to a predicate violent felony conviction as defined in\nparagraph (b) of subdivision one of section 70.04 of the penal law and\nmay be a second violent felony offender.\n  2.  Statement to be filed.  When information available to the court or\nto the people prior to sentencing for a violent felony offense indicates\nthat the defendant may have previously been subjected to a predicate\nviolent felony conviction, a statement must be filed by the prosecutor\nbefore sentence is imposed setting forth the date and place of each\nalleged predicate violent felony conviction.  Where the provisions of\nsubparagraph (v) of paragraph (c) of subdivision one of section 70.04 of\nthe penal law apply, such statement also shall set forth the date of\ncommencement and the date of termination as well as the place of\nimprisonment for each period of incarceration to be used for tolling of\nthe ten year limitation set forth in subparagraph (iv) of paragraph (b)\nof such subdivision.\n  3.  Preliminary examination.  The defendant must be given a copy of\nsuch statement and the court must ask him whether he wishes to\ncontrovert any allegation made therein.  If the defendant wishes to\ncontrovert any allegation in the statement, he must specify the\nparticular allegation or allegations he wishes to controvert.\nUncontroverted allegations in the statement shall be deemed to have been\nadmitted by the defendant.\n  4.  Cases where further hearing is not required.  Where the\nuncontroverted allegations in the statement are sufficient to support a\nfinding that the defendant has been subjected to a predicate violent\nfelony conviction the court must enter such finding and when imposing\nsentence must sentence the defendant in accordance with the provisions\nof section 70.04 of the penal law.\n  5.  Cases where further hearing is required.  Where the defendant\ncontroverts an allegation in the statement and the uncontroverted\nallegations in such statement are not sufficient to support a finding\nthat the defendant has been subjected to a predicate violent felony\nconviction the court must proceed to hold a hearing.\n  6.  Time for hearing.  In any case where a copy of the statement was\nnot received by the defendant at least two days prior to the preliminary\nexamination, the court must upon request of the defendant grant an\nadjournment of at least two days before proceeding with the hearing.\n  7.  Manner of conducting hearing.\n  (a)  A hearing pursuant to this section must be before the court\nwithout jury.  The burden of proof is upon the people and a finding that\nthe defendant has been subjected to a predicate violent felony\nconviction must be based upon proof beyond a reasonable doubt by\nevidence admissible under the rules applicable to a trial of the issue\nof guilt.\n  (b)  A previous conviction in this or any other jurisdiction which was\nobtained in violation of the rights of the defendant under the\napplicable provisions of the constitution of the United States must not\nbe counted in determining whether the defendant has been subjected to a\npredicate violent felony conviction.  The defendant may, at any time\nduring the course of the hearing hereunder controvert an allegation with\nrespect to such conviction in the statement on the grounds that the\nconviction was unconstitutionally obtained.  Failure to challenge the\nprevious conviction in the manner provided herein constitutes a waiver\non the part of the defendant of any allegation of unconstitutionality\nunless good cause be shown for such failure to make timely challenge.\n  (c)  At the conclusion of the hearing the court must make a finding as\nto whether or not the defendant has been subjected to a predicate\nviolent felony conviction.\n  8.  Subsequent use of predicate violent felony conviction finding.\nWhere a finding has been entered pursuant to this section, such finding\nshall be binding upon that defendant in any future proceeding in which\nthe issue may arise.\n