2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title L - Sentence › Article 400 - Pre-Sentence Proceedings › 400.19 - Procedure for Determining Whether Defendant Is a Second Child Sexual Assault Felony Offender.

§ 400.19 Procedure  for  determining whether defendant is a second child
sexual assault felony offender.
1. Applicability. The provisions of this section govern the  procedure
that  must be followed in any case where it appears that a defendant who
stands convicted of a felony offense for a sexual assault upon  a  child
as  defined  in  section  70.07  of  the  penal  law has previously been
convicted of a predicate felony for a sexual assault upon a child.
2. Statement to be filed. When information  available  to  the  people
prior  to  the  trial of a felony offense for a sexual assault against a
child indicates that the defendant may have previously been subjected to
a predicate felony conviction for a sexual assault against  a  child,  a
statement  may  be  filed  by  the  prosecutor  at any time before trial
commences setting forth the date and place  of  each  alleged  predicate
felony  conviction  for a sexual assault against a child and a statement
whether the defendant was eighteen years of age or older at the time  of
the  commission  of  the  predicate  felony.  Where  the  provisions  of
subparagraph (v) of paragraph (b) of subdivision one of section 70.06 of
the penal law apply, such statement also shall set  forth  the  date  of
commencement  and  the  date  of  termination  as  well  as the place of
imprisonment for each period of incarceration to be used for tolling  of
the  ten year limitation set forth in subparagraph (iv) of paragraph (b)
of such subdivision.
3. Preliminary examination. The defendant must be given a copy of such
statement and the court must ask him whether he wishes to controvert any
allegation made therein. If  the  defendant  wishes  to  controvert  any
allegation  in  the statement, he must specify the particular allegation
or allegations he wishes to controvert.  Uncontroverted  allegations  in
the statement shall be deemed to have been admitted by the defendant.
4.   Cases   where   further   hearing  is  not  required.  Where  the
uncontroverted allegations in the statement are sufficient to support  a
finding  that  the  defendant  has  been subjected to a predicate felony
conviction for a sexual assault upon a child and that the defendant  was
18  years of age or older at the time of the commission of the predicate
felony, the court must enter such finding  and  when  imposing  sentence
must sentence the defendant in accordance with the provisions of section
70.07 of the penal law.
5.  Cases  where  further  hearing  is  required.  Where the defendant
controverts an allegation in the statement, the court  must  proceed  to
hold a hearing.
6.  Manner  of  conducting  hearing.  (a)  A  hearing pursuant to this
section must be before the court without jury. The burden  of  proof  is
upon the people and a finding that the defendant has been subjected to a
predicate  felony  conviction  for  a  sexual assault against a child as
defined in subdivision two of section 70.07 of the penal  law  and  that
the defendant was 18 years of age or older at the time of the commission
of  the  predicate  felony  must be based upon proof beyond a reasonable
doubt by evidence admissible under the rules applicable to  a  trial  of
the issue of guilt.
(b)  Regardless  of whether the age of the victim is an element of the
alleged predicate felony offense, where  the  defendant  controverts  an
allegation that the victim of an alleged sexual assault upon a child was
less  than  fifteen  years  old, the people may prove that the child was
less than fifteen years old by any evidence admissible under  the  rules
applicable to a trial of the issue of guilt. For purposes of determining
whether a child was less than fifteen years old, the people shall not be
required  to  prove  that  the  defendant  knew  the child was less than
fifteen years old at the time of the alleged sexual assault.
(c) 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 must  not
be  counted in determining whether the defendant has been subjected to a
predicate  felony  conviction  for  a  sexual  assault upon a child. The
defendant may, at any time during the course of the  hearing  hereunder,
controvert  an  allegation  with  respect  to  such  conviction  in  the
statement 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.
(d)  At the conclusion of the hearing the court must make a finding as
to whether or not the defendant has been subjected to a predicate felony
conviction  for  a  sexual  assault  against  a  child  as  defined   in
subdivision  two  of  section  70.07  of  the  penal law and whether the
defendant was 18 years of age or older at the time of the commission  of
the predicate felony.
7.  Subsequent  use  of  predicate  felony conviction finding. Where a
finding has been entered pursuant to this section, such finding shall be
binding in any future proceeding in which the issue may arise.