2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title L - Sentence › Article 400 - Pre-Sentence Proceedings › 400.15 - Procedure for Determining Whether Defendant Is a Second Violent Felony Offender.

§  400.15    Procedure  for  determining  whether  defendant is a second
violent 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 violent felony offense as defined in
subdivision one of section 70.02 of the penal law  has  previously  been
subjected  to  a  predicate  violent  felony  conviction  as  defined in
paragraph (b) of subdivision one of section 70.04 of the penal  law  and
may be a second violent felony offender.
2.  Statement to be filed.  When information available to the court or
to the people prior to sentencing for a violent felony offense indicates
that  the  defendant  may  have previously been subjected to a predicate
violent felony conviction, a statement must be filed by  the  prosecutor
before  sentence  is  imposed  setting  forth the date and place of each
alleged predicate violent felony conviction.   Where the  provisions  of
subparagraph (v) of paragraph (c) of subdivision one of section 70.04 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  violent
felony  conviction  the  court must enter such finding and when imposing
sentence must sentence the defendant in accordance with  the  provisions
of section 70.04 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  a  predicate  violent  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  a  predicate  violent   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 a
predicate violent 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
violent felony conviction.
8.  Subsequent use of predicate  violent  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.