2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title L - Sentence › Article 400 - Pre-Sentence Proceedings › 400.21 - Procedure for Determining Whether Defendant Is a Second Felony Offender or a Second Felony Drug Offender.

§  400.21 Procedure for determining whether defendant is a second felony
offender or a second felony drug 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  has  previously  been  convicted  of  a
predicate  felony  and  may  be  a  second felony offender as defined in
section 70.06 of the penal law or  a  second  felony  drug  offender  as
defined  in  either paragraph (b) of subdivision one of section 70.70 of
the penal law, or paragraph (b) of subdivision one of section  70.71  of
the penal law.
2.  Statement  to be filed. When information available to the court or
to the people prior to  sentencing  for  a  felony  indicates  that  the
defendant  may  have  previously  been  subjected  to a predicate felony
conviction, a statement must be filed by the prosecutor before  sentence
is  imposed  setting  forth the date and place of each alleged predicate
felony conviction and whether the  predicate  felony  conviction  was  a
violent  felony  as  that  term is defined in subdivision one of section
70.02 of the penal law, or in any other jurisdiction of an offense which
includes all of the essential elements of any such felony  for  which  a
sentence  to  a  term of imprisonment in excess of one year or death was
authorized and is authorized in this state regardless  of  whether  such
sentence  was  imposed.  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  state  or  local  incarcerating
agency  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 or her whether he or she 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 the court must enter such finding, including a  finding  that
the  predicate felony conviction was of a violent felony as that term is
defined in subdivision one of section 70.02 of the penal law, or in  any
other  jurisdiction  of  an  offense which includes all of the essential
elements of  any  such  felony  for  which  a  sentence  to  a  term  of
imprisonment  in  excess  of  one  year  or  death was authorized and is
authorized in  this  state  regardless  of  whether  such  sentence  was
imposed,  and  when  imposing  sentence  must  sentence the defendant in
accordance with the applicable provisions of  section  70.06,  70.70  or
70.71 of the penal law.
5.  Cases  where  further  hearing  is  required.  Where the defendant
controverts an  allegation  in  the  statement  and  the  uncontroverted
allegations  in  such  statement are not sufficient to support a finding
that the defendant  has  been  subjected  to  such  a  predicate  felony
conviction the court must proceed to hold a hearing.
6. Time for hearing. In any case where a copy of the statement was not
received  by  the  defendant  at least two days prior to the preliminary
examination, the court must upon  request  of  the  defendant  grant  an
adjournment of at least two days before proceeding with the hearing.
7.  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
such a predicate felony conviction 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) 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
such a predicate felony conviction.  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.
(c)  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, including a finding as  to  whether  or  not  the  predicate
felony  conviction  was  of  a violent felony as that term is defined in
subdivision one of section 70.02 of the  penal  law,  or  in  any  other
jurisdiction  of an offense which includes all of the essential elements
of any such felony for which a sentence to a  term  of  imprisonment  in
excess  of  one  year  or death was authorized and is authorized in this
state regardless of whether such sentence was imposed.
8. Subsequent use of predicate  felony  conviction  finding.  Where  a
finding has been entered pursuant to this section, such finding shall be
binding  upon that defendant in any future proceeding in which the issue
may arise.