N.Y. Criminal Procedure Law § 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.