2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title L - Sentence › Article 400 - Pre-Sentence Proceedings › 400.20 - Procedure for Determining Whether Defendant Should Be Sentenced as a Persistent Felony Offender.

§  400.20    Procedure  for  determining  whether  defendant  should  be
sentenced as a persistent felony offender.
1.   Applicability.    The  provisions  of  this  section  govern  the
procedure that must be followed in order to impose the persistent felony
offender  sentence authorized by subdivision two of section 70.10 of the
penal law.  Such sentence may not be imposed unless, based upon evidence
in the record of a hearing held pursuant to this section, the court  (a)
has  found that the defendant is a persistent felony offender as defined
in subdivision one of section 70.10 of the penal law, and (b) is of  the
opinion  that  the history and character of the defendant and the nature
and circumstances  of  his  criminal  conduct  are  such  that  extended
incarceration and lifetime supervision of the defendant are warranted to
best serve the public interest.
2.    Authorization  for  hearing.   When information available to the
court prior to sentencing indicates that the defendant is  a  persistent
felony  offender,  and  when, in the opinion of the court, the available
information shows that a persistent  felony  offender  sentence  may  be
warranted,  the  court  may order a hearing to determine (a) whether the
defendant is in fact a  persistent  felony  offender,  and  (b)  if  so,
whether a persistent felony offender sentence should be imposed.
3.    Order  directing  a  hearing.    An order directing a hearing to
determine whether the defendant should  be  sentenced  as  a  persistent
felony  offender  must  be  filed  with  the clerk of the court and must
specify a date for the hearing not less than twenty days from  the  date
the  order  is filed.  The court must annex to and file with the order a
statement setting forth the following:
(a)  The dates and places of the previous convictions which render the
defendant a persistent felony offender as defined in subdivision one  of
section 70.10 of the penal law; and
(b)    The  factors  in  the defendant's background and prior criminal
conduct which the court deems relevant for the purpose of sentencing the
defendant as a persistent felony offender.
4.  Notice of hearing.  Upon receipt of the order and statement of the
court, the clerk of the court must send  a  notice  of  hearing  to  the
defendant,  his  counsel  and  the district attorney.   Such notice must
specify the time and place of the hearing and the fact that the  purpose
of  the  hearing  is to determine whether or not the defendant should be
sentenced as a persistent felony offender.  Each notice required  to  be
sent  hereunder  must  be  accompanied by a copy of the statement of the
court.
5.  Burden and standard of proof; evidence.   Upon  any  hearing  held
pursuant  to  this  section  the  burden of proof is upon the people.  A
finding that the defendant is a persistent felony offender,  as  defined
in subdivision one of section 70.10 of the penal law, must be based upon
proof  beyond  a reasonable doubt by evidence admissible under the rules
applicable to the trial of the issue of guilt.   Matters  pertaining  to
the  defendant's  history and character and the nature and circumstances
of his criminal conduct may be established by any relevant evidence, not
legally privileged, regardless of admissibility under  the  exclusionary
rules  of  evidence,  and  the  standard  of  proof with respect to such
matters shall be a preponderance of the evidence.
6.  Constitutionality of prior convictions.  A previous conviction  in
this  or  any  other jurisdiction which was obtained in violation of the
rights  of  the  defendant  under  the  applicable  provisions  of   the
Constitution  of  the  United  States  may not be counted in determining
whether the defendant is a persistent felony offender.    The  defendant
may,  at  any time during the course of the hearing hereunder controvert
an allegation with respect to such conviction in the  statement  of  the

court   on  the  grounds  that  the  conviction  was  unconstitutionally
obtained.  Failure to challenge the previous conviction  in  the  manner
provided herein constitutes a waiver on the part of the defendant of any
allegation  of  unconstitutionality  unless good cause be shown for such
failure to make timely challenge.
7.   Preliminary examination.   When the  defendant  appears  for  the
hearing  the  court  must  ask  him  whether he wishes to controvert any
allegation made in the statement prepared by the court, and  whether  he
wishes  to  present  evidence on the issue of whether he is a persistent
felony offender or on  the  question  of  his  background  and  criminal
conduct.    If  the defendant wishes to controvert any allegation in the
statement of the court, he must specify  the  particular  allegation  or
allegations  he  wishes to controvert.  If he wishes to present evidence
in his own  behalf,  he  must  specify  the  nature  of  such  evidence.
Uncontroverted  allegations  in  the  statement  of the court are deemed
evidence in the record.
8.    Cases  where  further  hearing  is  not  required.    Where  the
uncontroverted  allegations in the statement of the court are sufficient
to support a finding that the defendant is a persistent felony  offender
and  the court is satisfied that (a) the uncontroverted allegations with
respect to the defendant's  background  and  the  nature  of  his  prior
criminal conduct warrant sentencing the defendant as a persistent felony
offender,  and  (b)  the  defendant  either  has no relevant evidence to
present or the facts which could be  established  through  the  evidence
offered  by  the  defendant  would  not affect the court's decision, the
court may enter a finding that the  defendant  is  a  persistent  felony
offender   and  sentence  him  in  accordance  with  the  provisions  of
subdivision two of section 70.10 of the penal law.
9.  Cases where further hearing is  required.    Where  the  defendant
controverts  an  allegation  in  the  statement  of  the  court  and the
uncontroverted allegations in  such  statement  are  not  sufficient  to
support  a finding that the defendant is a persistent felony offender as
defined in subdivision one of section 70.10 of the penal law,  or  where
the  uncontroverted  allegations with respect to the defendant's history
and the nature of his prior criminal conduct do not  warrant  sentencing
him  as a persistent felony offender, or where the defendant has offered
to present evidence to establish facts that  would  affect  the  court's
decision  on  the  question  of  whether  a  persistent  felony offender
sentence is warranted, the court may fix a date for a  further  hearing.
Such  hearing  shall be before the court without a jury and either party
may introduce evidence with respect to the controverted  allegations  or
any  other  matter relevant to the issue of whether or not the defendant
should be sentenced as a persistent felony offender.  At the  conclusion
of  the  hearing  the court must make a finding as to whether or not the
defendant is a persistent felony offender and, upon a finding that he is
such, must then make such findings of fact as it deems relevant  to  the
question  of whether a persistent felony offender sentence is warranted.
If the court both finds  that  the  defendant  is  a  persistent  felony
offender  and  is  of  the  opinion  that  a  persistent felony offender
sentence is warranted, it may sentence the defendant in accordance  with
the provisions of subdivision two of section 70.10 of the penal law.
10.    Termination  of hearing.   At any time during the pendency of a
hearing pursuant to this section, the  court  may,  in  its  discretion,
terminate  the hearing without making any finding.  In such case, unless
the court recommences the proceedings and makes the necessary  findings,
the defendant may not be sentenced as a persistent felony offender.