N.Y. Criminal Procedure Law § 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.